| IMMIGRATION — Asylum — Appeal — Statutory review or judicial review — Direction that judicial review hearing take place before statutory review — Listing mistake resulting in final determination under statutory review — Whether judicial review appropriate — Whether court to set aside final determination — Nationality, Immigration and Asylum Act 2002 , s 103A (as inserted by section 26(6) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004)
R(AM)(Cameroon) v Asylum and Immigration Tribunal (No 2) , Secretary of State for the Home Department as interested party [2008] EWCA Civ 100; [2008] WLR (D) 57
CA:Waller, Rix and Hooper LJJ: 20 February 2008
Where a statutory review of an immigration appeal mistakenly went ahead before a judicial review application establishing a good arguable case had been heard resulting in a final determination, that determination should be set aside and the judicial review proceed .
The Court of Appeal so stated when, having granted permission on 21 February [2007] EWCA Civ 131, The Times April 11, 2007, allowing the application for judicial review by AM, an asylum seeker from Cameroon of interlocutory decisions made by an immigration judge, Mr LD Sacks, when refusing her appeal against a decision by the Secretary of State for the Home Department not to grant her asylum.
AM brought challenges by way of judicial review and by statutory procedure under s 103A of the Nationality, Immigration and Asylum Act 2002. A direction that the oral hearing of the judicial review application should take place before any s 103A review was not complied with. Consequently Bean J reconsidered and upheld the decision under s 103A which was final. Stanley Burnton J [2005] EWHC 3200 (Admin) then refused the judicial review application on the grounds that her case was not exceptional enough to take it outside the normal statutory review procedure.
WALLER LJ, giving the judgment of the court, said that it was clearly Parliament's intention that s 103A would introduce a speedy form of judicial review of appeals in immigration cases which was final. R (G) v AIT, R (M v AIT) [2005] 1 WLR 1445 held that the paper procedure "provides adequate and proportionate protection of the asylum seeker's rights" and that accordingly it was proper for a court "to decline to entertain an application for judicial review of issues which have been or could have been the subject of statutory review." The exception contemplated by that decision was that judicial review remained open in principle in cases of justiciable errors not susceptible of statutory review. To contemplate that exception, covering more than the rarest of cases, would be contrary to Parliament's intentions and the key question was whether this case fell within that exception. The minimum justice seemed to require was that AM should be entitled to have the clock stopped at a moment in time when there was no s 103A decision. In their Lordships’ view it was possible to reach that result by the application of the principle which allowed, in exceptional circumstances, a judgment, although final and perfected, to be withdrawn by the court that made it – a principle applied in Taylor v Lawrence [2003] QB 528 so far as the Court of Appeal was concerned. The same principle had been held to exist so far as the High Court was concerned but only in the situation in which the High Court was sitting as an appellate court: see Seray-Wurie v Hackney London Borough Council [2002] EWCA Civ 909 . But in their Lordships’ view the reason why it had not so far been suggested that the principle applied to judgments of the High Court, other than when sitting at the appellant level, was because so far as High Court judgments were concerned, in the normal course there was the remedy of an appeal, and this principle was only necessary to prevent injustice where there was no other remedy. The question was whether in this case the court was dealing with the type of mistake which brought into play the above jurisdiction. In considering that question it seemed that it was not just the type of mistake that was material, but also the consequences of the mistake i.e. the degree of injustice that might be suffered if the mistake of the court was not rectified. It seemed to their Lordships that judicial review of the normal kind would have been appropriate and this case fell within the exception identified in G & M. A decision would then have had to be taken on the evidence as to whether there had been a breach of natural justice. As to that final stage, the decisions and actions of the immigration judge must be looked at independently and cumulatively. The position of immigration judges was not easy. Applications for adjournments must be commonplace and by the rules they were encouraged to resist them. Applications based on the grounds of ill health had to be scrutinised with care. But at all times, in seeking to carry out that difficult task, the judge must remember above all that those who came before them must feel that justice had been fairly administered. In seeking to carry out that difficult task on this occasion the judge fell below what was required. The immigration judge’s refusal to reconsider the application to have evidence taken by telephonic link should be set aside and reconsidered by a different immigration judge and his decision on AM's appeal would be set aside and her appeal heard by that or some other, different immigration judge. |
