Secretary of State for the Home Department v Koncek

A tribunal raises a procedural fairness issue where it relies on material concerning the sufficiency of state protection without giving the parties an opportunity to address it. A potentially conclusive ground must also be sufficiently pleaded or otherwise properly placed before the tribunal; submissions alone may not be enough. These matters were identified as grounds requiring full appellate consideration, rather than finally determined on the permission application.

The Secretary of State applied for permission to appeal against a tribunal determination concerning Koncek. The proposed appeal raised concerns about the tribunal’s reliance on material relating to the sufficiency of state protection without ventilating that material with the parties. A further issue concerned whether a ground on which the tribunal decided the matter had been sufficiently pleaded, rather than raised only in submissions. The central question was whether those matters justified permission for a substantive appeal.

Lord Justice Buxton granted permission to appeal.

1. The judge was not satisfied that the tribunal was entitled to rely on material concerning the sufficiency of state protection without first putting that material to the parties. It appeared that the material had not been ventilated with them.
2. The tribunal had also decided the matter on a ground which, if properly before it as a matter of pleading, would have been conclusive. The judge was not satisfied that the ground had been sufficiently laid before the tribunal. A distinction arose between a matter properly pleaded and a matter advanced only by way of submissions.
3. Those concerns were sufficient to justify permission, but the judgment did not determine the substantive merits of the appeal or finally resolve either issue.

The appeal was directed to proceed before two Lords Justices and was suitable for the short warned list. A respondent’s notice was to be filed within 28 days. The formal order was: application allowed with a legal aid taxation.

• Court of Appeal (Civil Division): On an application for permission to appeal, permission was granted in relation to concerns arising from the tribunal’s determination. The appeal was directed to proceed before two Lords Justices.