Court of Appeal

Published March 7, 2008

Regina (AM) (Cameroon) v Asylum and Immigration Tribunal (No 2)

Before Lord Justice Waller, Lord Justice Rix and Lord Justice Hooper

Judgment February 20, 2008

Where a listing mistake meant a statutory review of an immigration appeal went ahead, resulting in a final determination, before a judicial review application had been heard, the judicial review should be heard and the final determination set aside; otherwise the applicant would suffer serious injustice for which there was no other remedy.

The Court of Appeal so stated when, having granted permission at an earlier hearing (The Times April 11, 2007), it allowed an application for judicial review by AM, an asylum seeker from Cameroon, of interlocutory decisions made by an immigration tribunal, Mr L. D. Sacks, when refusing her appeal against the rejection by the Secretary of State for the Home Department of her asylum application.

She sought to challenge his interlocutory decisions, made while hearing the appeal, and the decision itself by way of judicial review and by the paper procedure under section 103A of the Nationality, Immigration and Asylum Act 2002, as inserted by section 26(6) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.

A direction that the oral hearing of the judicial review application should take place before any section 103A review was not complied with. Mr Justice Bean reconsidered and upheld the decision under section 103A which was final.

Mr Justice Stanley Burnton ([2005] EWHC 3200 (Admin)) refused the judicial review application on the ground that her case was not exceptional enough to take it outside the normal statutory review procedure.

Mr Rabinder Singh, QC and Ms Amanda Weston for AM; Mr Martin Chamberlain for the tribunal; Mr Clive Lewis, QC for the Home Secretary, as interested party.

LORD JUSTICE WALLER, giving the judgment of the court, said that it was clearly Parliament’s intention that section 103A would introduce a speedy form of judicial review of appeals in immigration cases.

In R (G) v Asylum and Immigration Tribunal; R (M) v Same ([2005] 1 WLR 1445), the Court of Appeal held that the section 103A procedure provided 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 had 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. The key question was whether this case fell within that exception.

The minimum that justice seemed to require was that AM should be entitled to have the clock stopped at a moment in time when there was no section 103A decision.

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: see 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 where it was sitting as an appellate court: see Seray Wurie v Hackney London Borough Council ([2002] EWCA Civ 909).

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 appellate level, was because in the normal course there was the remedy of an appeal, and the principle was necessary to prevent injustice only where there was no other remedy.

The question was whether the court was dealing with the type of mistake which brought into play the above jurisdiction. It seemed that it was not just the type of mistake that was material, but also the consequences of the mistake; the degree of injustice that might be suffered if the mistake of the court was not rectified.

Oral argument would, as it had before their Lordships, have made it impossible to hold there was nothing arguable in the allegations being made. A judge would actually have been wrong to use the section 103A procedure and simply send the matter back for reconsideration.

The section 103A procedure itself was not well suited to resolving disputes arising on evidence not before the tribunal: see rule 54.33(3) of the Civil Procedure Rules. The review exercise required was more properly conducted by the High Court in its supervisory jurisdiction. Section 103A only gave one opportunity to challenge an appeal decision.

If AM was right, she had never had a fair hearing at all. It would be quite wrong that an unfair hearing, and one that possibly should never have taken place before the particular immigration judge, should count as a hearing so as to bring into play the guillotine that section 103A imposed.

It seemed to their Lordships that judicial review of the normal kind would have been appropriate and that this case fell within the exception previously identified.

A decision would have then have had to be taken on the evidence as to whether there had been the breach of natural justice. As to that final stage, the decisions and actions of the immigration judge must be looked at independently and cumulatively.

Their Lordships should perhaps add that the position of immigration judges was not easy. Applications for adjournments were 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 judges must remember above all that those who came before them must feel that justice had been fairly administered.

Solicitors: Luqmani Thompson, Wood Green; Treasury Solicitor; Treasury Solicitor.

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