ASYLUM AND IMMIGRATION TRIBUNAL	
EB (no funding order - first stage reconsideration) Turkey [2005] UKAIT 00145	

THE IMMIGRATION ACTS

Heard at: Field House
On 24 August 2005	Determination Promulgated 
On 20 October 2005
………………………………………	

	
	
Before	

Mr P R Moulden (Senior Immigration Judge)
Miss B Mensah (Senior Immigration Judge)
	
Between	

	
Appellant	

and	
SECRETARY OF STATE FOR THE HOME DEPARTMENT	
			
		Respondent 	

Representation:

For the Appellant:		Mr J Collins, of Counsel, instructed by
				Sheikh & Co, Solicitors		 
For the Respondent:	Mr S Ouseley, Home Office Presenting Officer	 

FUNDING DETERMINATION

1.	The appellant is a citizen of Turkey.   A Senior Immigration Judge ordered reconsideration of the determination of an Immigration Judge, Mr W D Mark-Bell, dismissing her appeal against the respondent's decision to give directions for her removal from the United Kingdom as an illegal entrant following the refusal of asylum.   

2.	The appellant was represented at the hearing before the Immigration Judge and gave evidence.    He found that she was not a credible witness, had not established the facts on which she sought to rely and was not at risk of persecution for a Convention reason or infringement of her human rights.   The grounds of appeal allege that the Immigration Judge erred in law by relying on the adverse credibility finding made in an earlier determination of the appellant's husband's appeal by an Adjudicator.    

3.	Mr Collins argued that this was a material error of law which we were in no position to rectify.   Mr Ouseley conceded that this was a material error of law.   Both representatives asked us to adjourn the hearing for a full second stage reconsideration.  

4.	We found that there were material errors of law.   We adjourned the reconsideration for a continuation hearing at the Bradford Hearing Centre before an Immigration Judge or panel not including Mr Mark-Bell.   We gave directions.   

5.	At the end of the hearing Mr Collins asked for a funding order.   Mr Ouseley said that he did not wish to make any submissions in relation to this application.   

6.	After hearing preliminary submissions from Mr Collins we took the view that we would be assisted by detailed written submissions.   Mr Collins asked for leave to submit these after the hearing, which he has done.  We have considered these submissions.

7.	After dealing with preliminary matters, most of which are covered by what we have already said, the substance of Mr Collins submissions are set out in paragraphs 7 to the end (paragraph 21).   These merit inclusion in full;

"7.	It is not in issue that the appellant in the instant case applied pursuant to section 103A of the 2002 Act as inserted by section 26 of the 2004 Act (at tab 1 of the Bundle) to "the appropriate court" for reconsideration of the Immigration Judge's decision on the basis of the Immigration Judge's error of law.

  8.	Pursuant to the "filter provision" (of paragraph 30 of Schedule 2 to the 2004 Act) a Senior Immigration Judge rather than a High Court Judge decided the application for reconsideration.  As stated above reconsideration was ordered.  

  9.	It is clear from paragraph 103D(1) of the 2002 Act that the appropriate court which ordered reconsideration can in certain circumstances make a funding order on the application of an appellant.  Paragraph 15.2 of the Practice Directions referring to Regulations 5(4) and 5(5) of the Community Legal Service (Asylum and Immigration Appeals) Regulations 2005 (at tab 3) makes clear that such power is exercisable in two strictly defined circumstances when either the appropriate court dismisses or makes no order for reconsideration Ref 5(4), or the appropriate court having ordered reconsideration, a reconsideration hearing of the appeal did not take place Reg 5(5).

 10.	It is submitted that it clear from paragraph 103A(9) of the 2002 Act and indeed Reg 5(6) of the LSC Regulations that "the appropriate court" means the High Court or by virtue of the filter provision the member of the Tribunal who ordered reconsideration.

11.	Section 103D(2) of the 2002 Act provides that "where the Tribunal has decided an appeal following reconsideration pursuant to an order made under section 103A(1)" then on the application of the appellant and pursuant to section 103D(3) the Tribunal may order a funding order in respect of the appellant's costs in respect of the application for reconsideration and in respect of the reconsideration.

12.	It is submitted that in the instant case the Tribunal did "decide" the appeal following reconsideration to the extent that it clearly reconsidered the matter, it's decision being to adjourn and transfer it.  Prior to the AIT and under the IAT it was made clear at section 103(3) of the 2002 Act (at tab 5) that in the IAT a remittal by the Tribunal was not "a determination of the appeal for the purposes of section 103(1).  There is no analogous provision in subsections 103AQ to 103D that in the AIT the Tribunal having reconsidered the appeal but deciding to adjourn and/or transfer it that would not amount to a "decision".  If the draftsman of subsections 103A to 103D had intended that decisions to adjourn and/or transfer a reconsideration were "decisions" that would have been stated in terms in the same way that section 103(3) indicated that a remittal was not a determination.

 13.	Support for that submission can be seen from paragraph 15.5 of the Practice Directions which states in respect of funding orders "Unless it directs otherwise, the Tribunal shall hear any submissions as to such an order at the conclusion of the proceedings on the reconsideration."  Paragraph 5.15 does not refer to a final decision on reconsideration or as to whether the appeal was allowed but rather the "conclusion of the proceedings."  The conclusion of the proceedings on 24 August 2005 was the Tribunal adjourning and transferring the matter.  To that extent it was appropriate for the Tribunal to hear submissions on a funding order.  It is of note that at Reg 6(2) of the LSC Regulations there is a reference to the mandatory making of a funding order when an appeal is "allowed" which is obviously a final decision rather than at the conclusion of any proceedings that may have taken place prior to that final decision.

 14.	The above submissions might be right otherwise representatives potentially would not be paid for work they have undertaken once reconsideration has been ordered and what is generally to as the 'first stage' or 'error of law'  Hearing has taken place and is adjourned and/or transferred.  It is clear from Section 103D(1) of the 2002 and Reg 5(5) referred to above that if an order for reconsideration has been made but for whatever reason no reconsideration of the appeal takes place the appropriate court can make a funding order.  There is no analogous provision in section 103D(3) for when a first stage hearing has taken place but the adjourned/transferred hearing did not take place.

 15.	Indeed paragraph 15.8 of the Practice Directions makes it clear that the power referred to at paragraph 15.2(b) of the Practice Direction covers only the costs in respect of the review application not any costs incurred in connection with preparing for a reconsideration that does not take place.  Paragraph 15.8 goes on to set out that in an appropriate case the Tribunal will consider representations for funding order to be granted under Section 103D(3) if a reconsideration hearing never took place.  Again, there is no provision for such an application if a reconsideration hearing did take place but was adjourned and/or transferred.

 16.	The Tribunal is further respectfully referred to paragraph 15.4 of the Practice Directions referring to Rule 33 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (at tab 4) "requires the Tribunal that has reconsidered an appeal to make a funding determination, where the appellant's representative has specified in the application for reconsideration that he is seeking a funding order".  In the instant case the Tribunal has plainly reconsidered the appeal.

 17.	It is submitted that in the instant case the requirements of Rule 33(1) are obviously satisfied that pursuant to Rule 33(2) the Tribunal can make a separate funding Determination as well as making a principal Determination (cf paragraphs 14.1 to 14.4 of the Practice Directions) giving reasons for finding that the original Tribunal made an error of law.

 18.	The Tribunal is further referred to paragraph 15.7 of the Practice Directions where the Tribunal is obliged to give reasons where it decides not to make a funding order "following a reconsideration of an appeal" (referring to Reg 6(4) of the LSC Regulations).  In the instance case the Tribunal engaged in a reconsideration of an appeal and as such should make a funding order unless appropriate reasons are provided pursuant to Reg 6(4).

 19.	Further an in any event it is clear from Reg 6 of the LSC Regulations that pursuant to Reg 6(3) of the LSC Regulations even if the appeal is not allowed on reconsideration the Tribunal can make a funding order under section 103D(3) if satisfied that at the time the section 103A application was made there was a significant prospect that the appeal would be allowed upon reconsideration.  It cannot be said and is not argued that in the instant case the Tribunal "allowed" the appeal.  Given, however, that the same test would have to applied by a differently constituted Tribunal after, for the sakes of argument, an ultimately unsuccessful substantive (or second stage) reconsideration it seems, with respect, odd that this Tribunal should not be able to come to its own decision under Reg 6(3) at this stage of the proceedings.

 20.	For all the above reasons it is submitted that the Tribunal can and should at this stage of the proceedings make a funding order in the instant case.

 21.	Whatever view the Tribunal takes in respect of these submissions it is respectfully submitted that given the lack of clarity in the various Rules and Regulations the Tribunal may wish to provide guidance on this issue so that it does not take up the time of the Tribunal on future occasions." 

8.	The relevant provisions of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 appear in paragraph 103D.   They provide;
	
“103D Reconsideration: legal aid 

(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 the Tribunal has decided an appeal following reconsideration pursuant to an order made –

		(a)	under section 103A(1), and
		(b)	on the application of the appellant

	(3)	The Tribunal may order that the appellant's costs –

		(a)	in respect of the application for reconsideration, and
		(b)	in respect of the reconsideration, 
		shall be paid out of that Fund.

(4)	The Secretary of State may take regulations about the exercise of the powers in subsections (1) and (3).

(5)	Regulations under subsection (4) may, in particular, make provision –

(a)	specifying or providing for the determination of the amount of payments;
	(b)	about the persons to whom the payments are to be made;
(c)	restricting the exercise of the power (whether by reference to the prospects of success in respect of the appeal at the time when the application for reconsideration was made, the fact that a reference has been made under section 103C(1), the circumstances of the appellant, the nature of the appellant's legal representatives, or otherwise).

(6)	Regulations under subsection (4) may make provision –

	(a)	conferring a function on the Legal Services Commission;
(b)	modifying a duty or power of the Legal Services Commission in respect of compliance with orders under subsection (3);
(c)	applying (with or without modifications), modifying or disapplying a provision of, or of anything done under, an enactment relating to the funding of legal services.

(7)	Before making regulations under subsection (4) the Secretary of State shall consult such persons as he thinks appropriate.  

(8)	This section has effect only in relation to an appeal decided in –
	(a)	England,
	(b)	Wales, or
	(c)	Northern Ireland

(9)	In relation to an appeal decided in Northern Ireland this section shall have effect – 

(a)	as if a reference to the Community Legal Service fund were to the fund established under paragraph 4(2)(a) of Schedule 3 to the Access to Justice (Northern Ireland) Order 2003 (S.I.2003/435 (N.I. 10))(, and

	(b)	with any other necessary modifications."

9.	The Asylum and Immigration Tribunal Practice Directions contain Reconsideration Procedures at paragraph 14 and Legal Aid on Reconsideration Provisions at paragraph 15.   These provide;
		
		"14		Procedure on reconsideration

14.1 	Subject to paragraph 14.12, where an appeal has been ordered under section 103A  to be reconsidered, then, unless and to the extent that they are directed otherwise, the parties to the appeal should assume that the issues to be considered at the hearing fixed for the reconsideration will be whether the original Tribunal made a material error of law (see rule 31(2)) and, if so, whether, on the basis of the original Tribunal’s findings of fact, the appeal should be allowed or dismissed.

14.2	Where the Tribunal decides that the original Tribunal made a material error of law but that the Tribunal cannot proceed under rule 31(3) to substitute a fresh decision to allow or dismiss the appeal because findings of fact are needed which the Tribunal is not in a position to make, the Tribunal will make arrangements for the adjournment of the hearing or for the transfer of the proceedings under paragraph 12.3 so as to enable evidence to be adduced for that purpose. 

14.3	Where the Tribunal acting under paragraph 14.2 adjourns the hearing, its determination, produced after the adjourned hearing has taken place, will contain the Tribunal’s reasons for finding that the original Tribunal made a material error of law.

14.4	Where the Tribunal acting under paragraph 14.2 transfers the proceedings, it shall prepare written reasons for its finding that the original Tribunal made a material error of law and those written reasons shall be attached to, and form part of, the determination of the Tribunal which substitutes a fresh decision to allow or dismiss the appeal.

14.5	The references in paragraph 14.1 to 14.4 to the original Tribunal include references to an adjudicator in any case where, by virtue of article 6 of the Commencement Order, the order under section 103A is made in respect of the decision of an adjudicator.

14.6	Under article 5 of the Commencement Order, any appeal that was pending before the IAT immediately before 4 April 2005 shall on and after that date be dealt with in the same manner as if the Tribunal had originally decided the appeal and was reconsidering its decision. 
14.7	Rule 62(7) provides that, in the case of an appeal described in paragraph 14.6, the reconsideration shall be limited to the grounds upon which the IAT granted permission to appeal.  In most cases, those grounds will require the Tribunal to decide whether the adjudicator made a material error of law.
14.8	Subject to paragraph 14.12, on and after 4 April 2005, and in the absence of any direction to the contrary, the parties to any appeal that falls to be dealt with as described in paragraph 14.6 should assume that the issues to be considered at the hearing will be whether the adjudicator made a material error of law and, if so, whether, on the basis of that adjudicator’s findings of fact, the appeal should be allowed or dismissed.  
14.9	Where the Tribunal decides that the adjudicator made a material error of law but that the Tribunal cannot proceed under rule 31(3) to substitute a fresh decision to allow or dismiss the appeal because findings of fact are needed which the Tribunal is not in a position to make, the Tribunal will make arrangements for the adjournment of the hearing or for the transfer of the proceedings under paragraph 12.3 so as to enable evidence to be adduced for that purpose. 
14.10	The provisions of paragraph 14.3 and 14.4 shall apply in relation to paragraph 14.9 as they apply in relation to paragraph 14.2 but with the modification that the references to the original Tribunal shall be interpreted as referring to the adjudicator.
14.11	Where, immediately before 4 April 2005, an appeal was pending before an adjudicator, having been remitted to an adjudicator by a court or the IAT, it will already have been decided that the original adjudicator’s determination cannot stand.  The Tribunal will accordingly proceed to re-hear the appeal. 
14.12	In the case of a reconsideration of a fast track appeal, the Tribunal reconsidering the appeal is required by rule 23 of the Fast Track Rules to reconsider its decision on the appeal at the reconsideration hearing, subject to the qualifications described in rule 23(1) of those Rules.  The Tribunal’s power to adjourn a fast track appeal that remains as such is governed by rule 28 of those Rules.
14.13	The parties to any fast track appeal which is being reconsidered by the Tribunal on or after 4 April 2005 will be expected to attend with all necessary witnesses and evidence that may be required if the Tribunal should decide that it is necessary to re-hear the appeal.  It will be unusual for the Tribunal to adjourn the reconsideration hearing but, if it does so, paragraph 14.4 will, so far as appropriate, apply.
14.14	The preceding provisions of this paragraph and paragraph 13 are subject to article 9 of the Commencement Order in the case of certain “old” appeals, where the issue is not restricted to whether the adjudicator made an error of law.

		15	Legal aid on reconsideration

15.1	The relevant statutory provisions concerning the provision of legal aid in respect of the reconsideration of appeals (other than fast track appeals) decided in England and Wales are to be found in:

(a)	section 103D (as inserted by section 26(6) of the 2004 Act);
(b)	rule 28A (orders for funding of section 103A applications) (as inserted by the Asylum and Immigration Tribunal (Procedure) (Amendment) Rules 2005) and rule 33 (orders for funding on reconsideration); the Community Legal Service (Asylum and Immigration Appeals) Regulations 2005 (“the CLS Regulations”).

15.2	On an application under section 103A which is dealt with by an immigration judge under the filter provision referred to in paragraph 13.3, the immigration judge has power to make an order under section 103D for the appellant’s costs to be paid out of the CLS fund (“a funding order”).  That power is, however, exercisable only in the following circumstances:  

(a)	where the immigration judge dismisses or makes no order on the section 103A application, that judge may make a funding order only where there has been a change in relevant circumstances or a change in the law since the application was made and at the time the application was made, there was a significant prospect that the appeal would be allowed upon reconsideration (regulation 5(4));
(b)	where the immigration judge makes an order for reconsideration but, in the event, no reconsideration takes place (eg. because the immigration decision appealed against is withdrawn) (regulation 5(5)).

15.3	A funding order of the kind described in paragraph 15.2(b) can be made only on application by a supplier (as defined in the CLS Regulations) or counsel instructed by the supplier (regulation 5(5)).

15.4	Rule 33 (orders for funding on reconsideration) requires the Tribunal that has reconsidered an appeal to make a funding determination, where the appellant’s representative has specified in the application for reconsideration that he is seeking a funding order.  The funding determination is separate from the determination of the appeal itself.

15.5	Unless it directs otherwise, the Tribunal shall hear any submissions as to such an order at the conclusion of the proceedings on the reconsideration.  

15.6	If the Tribunal allows the appeal on reconsideration, it is required by regulation 6(2) to make a funding order.  If it does not allow the appeal, the Tribunal must not make a funding order 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 (regulation 6(3)).

15.7	The Tribunal must give reasons where it decides not to make a funding order, following a reconsideration of an appeal (regulation 6(4)).  A supplier, or counsel instructed by a supplier, may apply under regulation 7 for a review of such a decision.  The review will be carried out by a senior immigration judge, who will decide whether to hold a hearing, if one is requested.

15.8	It should be noted that the power to make a funding order in the circumstances described in paragraph 15.2(b) covers only the costs in respect of the review application; not any costs incurred in connection with preparing for a reconsideration that does not, in the event, take place.  In certain circumstances, it may be inappropriate for a supplier or counsel to be denied a funding order which would cover the costs of preparing for the reconsideration.  In an appropriate case, therefore, the Tribunal will consider representations as to whether it should make a decision by consent on the appeal following reconsideration (whether or not involving a hearing), so as to enable the Tribunal to make a funding order under section 103D(3) in respect of the review application and the reconsideration, notwithstanding that it may not otherwise have been necessary to undertake the reconsideration.

15.9	A funding order can only be made where there has been an application for an order under section 103A(1) (see section 103D(2)(b)). Accordingly, a funding order may not be made in a case described in paragraph 14.6 or paragraph 14.11. Nor can such an order be made in a case described in paragraph 14.1 where a pending application to the IAT is treated as an application under section 103A(1) (see paragraph 14.5 and article 6(5) of the Commencement Order)." 

10.	The Community Legal Service (Asylum and Immigration Appeals) Regulations 2005 provide;
		
	"General restrictions on power to make section 103D orders

	4.	(1)	The High Court or the Tribunal shall only make a section 103D order in immigration review proceedings where an appellant is represented by a supplier acting pursuant to a grant of Legal Representation.

	(2)	The High Court or the Tribunal shall not make a section 103D order in fast track proceedings.

	(3)	Regulations 5 to 8 apply in relation to immigration review proceedings in which the High Court or the Tribunal has power, under section 103D(1)-(3) and this regulation, to make a section 103D order.

Criteria for making orders under section 103D(1)

5.	(1) The appropriate court must exercise the power to make an order under section 103D(1) in accordance with this regulation. 

(2)	If, upon a section 103A application, the appropriate court makes an order for reconsideration, subject to paragraph (5) it must not make an order under section 103D(1).

(3)	If the High Court makes a reference under section 103C of the 2002 Act, it must make an order under section 103D (1).

(4)	If the appropriate court dismisses or makes no order on the section 103A application, it may make an order under section 103D(1) only if –

(a)	there has been a change in any relevant circumstances or a change in the law since the application was made; and

(b)	at the time when the application was made, there was a significant prospect that the appeal would be allowed upon reconsideration.

(5)	The appropriate court may, on an application in wiring by a supplier or counsel instructed by the supplier, make an order under section 103D(1) where it has made an order for reconsideration, but no reconsideration of the appeal takes place.

(6)	In this regulation, "the appropriate court" means –

	(a)	the High Court; or

(b)	a member of the Tribunal who considers a section 103A application by virtue of paragraph 30 of Schedule 2 to the 2004 Act." 

11.	The Asylum and Immigration Tribunal (Procedure) Rules 2005 provide, in Rule 33, as follows;

"Criteria for making orders under section 103D(3)

	6.	(1)	the Tribunal must exercise the power to make an order under section 103D(3) in accordance with this regulation.

	(2)	If the Tribunal allows an appeal on reconsideration, it must make an order under section 103D(3).

	(3)	If the Tribunal does not allow an appeal, it 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) applies, the Tribunal decides not to make an order under section 103D(3), it must give reasons for its decisions.	

	Review by Tribunal of decision not to make order under section 103D(3)

	7.	(1)	A supplier, or counsel instructed by a supplier, may apply to the Tribunal in writing for a review of a decision by the Tribunal not to make an order under section 103D(3).

	(2)	An application under this regulation must be filed within 10 business days after the supplier is served with the Tribunal's decision not to make an order, or such longer period as the Tribunal may allow.

	(3)	A review shall 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.

	(4)	The Senior Immigration Judge may –

		(a)	carry out the review without a hearing; or

(b)	hold an oral hearing, if one is requested by the supplier or counsel.

	(5)	The Senior Immigration Judge may –

		(a)	make an order under section 103D(3); or

		(b)	confirm the Tribunal's decision not to make an order.

(6)	The Senior Immigration Judge must give reasons for his decision on a review.

Terms and effect of section 103D orders

8.	(1)	Subject to paragraph (2), a section 103D order shall have effect as an order for payment of all the costs incurred by a supplier representing the appellant in the proceedings to which the order relates, including the fees of counsel instructed by the supplier, for which payment is allowable under the terms of the contract between the Commission and the supplier.

(2)	In relation to proceedings in which a supplier has instructed counsel, the High Court or the Tribunal may in special circumstances make a section 103D order –

		(a)	in respect of counsel's fees only; or

(b)	in respect of the costs incurred by the supplier excluding Counsel's fees.

(3)	A section 103D order must not specify – 

		(a)	the amount to be paid by the Commission; or

		(b)	the person or persons to whom payment is to be made.

	And the Commission shall determine those matters in accordance with the terms of its contract with the supplier."
		
	Orders for funding on reconsideration

     	33.  - (1) This rule applies where - 

       (a)	the Tribunal has reconsidered an appeal following a section 103A application made by the appellant in relation to an appeal decided in England, Wales or Northern Ireland; and

  (b) 	the appellant's representative has specified that he seeks an order under section 103D of the 2002 Act for his costs to be paid out of the relevant fund.

(2)  	The Tribunal must make a separate determination ("the funding determination") stating whether it orders that the appellant's costs - 

(a) in respect of the application for reconsideration; and

(b) in respect of the reconsideration,

are to be paid out of the relevant fund.

    	(3) 		The Tribunal must send the funding determination to - 

(a) 	the appellant's representative; and

(b) 	if the Tribunal has made an order under section 103D, the relevant funding body.

(4) 		Where the determination of the reconsidered appeal ("the principal determination") is served in accordance with rule 23, the Tribunal must not send the funding determination to the appellant's representative until - 

(a)	 the respondent has notified the Tribunal under rule 23(5)(b) that it has served the principal determination on the appellant; or

(b) 	the Tribunal has served the principal determination on the appellant under rule 23(6).

    	(5) 	In this Rule - 

(a) "relevant fund" means - 

(i) in relation to an appeal decided in England or Wales, the Community Legal Service Fund established under section 5 of the Access to Justice Act 1999[7];

(ii) in relation to an appeal decided in Northern Ireland, the fund established under paragraph 4(2)(a) of Schedule 3 to the Access to Justice (Northern Ireland) Order 2003[8]; and

(b) "relevant funding body" means - 

(i) in relation to an appeal decided in England or Wales, the Legal Services Commission;

(ii) in relation to an appeal decided in Northern Ireland, the Northern Ireland Legal Services Commission."

12.	We find that at this stage in the proceedings we have no power to make a funding order.   Where reconsideration has been ordered and the reconsideration hearing has commenced but has not been concluded by a determination either upholding or overturning the original determination, the reconsideration has not been completed and the application for a funding order should be made to and be considered by the Tribunal on the adjourned hearing at which the reconsideration is completed.   It is significant that sub-section (2) of Section 103D of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 states that sub-section 3 applies "where the Tribunal has decided an appeal following reconsideration" (our emphasis).  We draw support for this conclusion from paragraph 6(2) and (3) of the Community Legal Service (Asylum and Immigration Appeals) Regulations 2005 setting out the criteria for making orders under Section 103D(3).   This refers to the Tribunal allowing or not allowing an appeal.   This does not happen until the conclusion of the reconsideration proceedings.   Rule 33(1)(a) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 refers to a situation in which "the Tribunal has reconsidered an appeal" which reinforces our view that a decision as to whether or not to make a funding order needs to be made at the end of the reconsideration process.

13.	It is clear from paragraphs 14.1 to 14.4 of the Practice Directions, which deal with the procedure to be adopted where reconsideration is dealt with at more than one hearing, that the reconsideration process is a single unified process even if there is more than one hearing.  If, on the first hearing, the Tribunal finds that there is a material error of law but it is in no position to substitute a fresh decision to allow or dismiss the appeal because findings of fact are needed which the Tribunal is not at that stage able to make then, as paragraph 14.2 provides, the Tribunal is to make arrangements for the hearing and for the transfer of the proceedings.   Whilst at the first stage the Tribunal prepares a determination, this is not promulgated or shown to the parties but is incorporated in the final determination of the Tribunal at the end of the reconsideration process.  These are often referred to as a first stage reconsideration and a second stage reconsideration.   

14.	We do not agree with paragraph 12 of Mr Collins’ submissions.   We have not "decided" the reconsideration.   We have found that there is a material error of law, that we are in no position to determine the reconsideration without hearing evidence and have therefore adjourned for another panel or Immigration Judge to continue and complete the reconsideration.

15.	We do not consider that any useful guidance can be drawn from the fact that the 2004 Act does not contain provisions analogous to section 103 of the 2002 Act.  As to paragraph 13 of the submissions we find that the reference in paragraph 15.5 of the Practice Directions to "unless it directs otherwise, the Tribunal shall hear any submissions as to such an order at the conclusion of the proceedings on the reconsideration" to be clear.   The conclusion of the proceedings is the conclusion of the reconsideration proceedings.   An interim step in the reconsideration proceedings, at which they are adjourned, is not the conclusion of the proceedings.

16.	The fact that the Tribunal will consider representations for a funding order to be granted under section 103D(3) if a reconsideration hearing never takes place does not, as paragraph 15 of the grounds suggest, assist in determining what happens if a reconsideration hearing is adjourned. 

17.	Contrary to the submission in paragraph 16 we do not agree that we have reconsidered the appeal, in the past tense.   We have dealt with essential points in the reconsideration process. The full reconsideration process has yet to be completed.

18.	Regulation 6 of the 2005 Regulations sets out two pre-conditions for making an order under section 103D(3).   The first is allowing an appeal on reconsideration.   The second is not allowing an appeal on reconsideration.   Neither of these decisions has been taken.   They will not be taken until the adjourned hearing and the conclusion of the reconsideration process.  

19.	Section 103 D(3) (b) provides that the order is one for the appellant’s costs in respect of the reconsideration to be paid out of the fund (our emphasis).  There is no power to make an order that covers only a part of the reconsideration.  Thus, if Mr Collins were right, the Tribunal would have to order that the cost of proceedings, part of which have not yet occurred, will be paid for in any event,  even though:-

(a) it may emerge at the second stage that the test in regulation 6 (3) was not in fact met, perhaps because good faith issues arise; or

(b) there are found to be special circumstances why counsel but not the supplier should be paid, or vice versa.

20.	 That particular result would need to be supported by clear wording. It is not.

21.	We find that, at this stage in the proceedings, having adjourned the reconsideration hearing, we have no power to make a funding order.

22.	This determination is reported for what it says about the Tribunal   having no power to make a funding order on a first stage reconsideration where a second stage reconsideration is ordered.

P R Moulden
Senior Immigration Judge