Anteneh v Secretary of State for the Home Department

A decision by the Immigration Appeal Tribunal to remit an asylum appeal for rehearing is not a final determination of an appeal for the purposes of paragraph 23 of Schedule 4 to the Immigration and Asylum Act 1999. The Court of Appeal is therefore unable to hear an appeal against that decision. The court is bound by Kara v Secretary of State, which reached the same conclusion under materially identical legislation. Any challenge to the tribunal’s decision may instead be pursued by judicial review, although permission may be refused where the proposed appeal has no real prospect of success.

The appellant sought permission to appeal against the Immigration Appeal Tribunal’s decision to remit his asylum appeal for rehearing by another special adjudicator. He argued that Rule 23 of the Asylum Appeals Procedures Rules 2000 required the tribunal to determine the appeal itself. The central jurisdictional issue was whether the tribunal’s remittal decision constituted a final determination of an appeal under paragraph 23 of Schedule 4 to the Immigration and Asylum Act 1999.

1. The application was dismissed because the Court of Appeal had no jurisdiction to hear an appeal from the Immigration Appeal Tribunal’s decision to remit the asylum appeal. The court was bound by Kara v Secretary of State [1995] Imm AR 584, which held under identical provisions in the 1993 Act that a remittal decision was not a final determination of an appeal.
2. The decision of Scott Baker J in Secretary of State v Immigration Appeal Tribunal, dated 9 April 2001, was noted as having followed Kara v Secretary of State. Although permission to appeal had been granted in that case, the existence of that pending appeal did not displace the Court of Appeal’s binding authority.
3. Lord Justice Tuckey stated that, even if jurisdiction existed, the proposed appeal had no real prospect of success. The choice whether to decide or remit was primarily for the specialist tribunal, and the court was not persuaded that the tribunal had erred in considering that evaluation of country material might require oral evidence.
4. Judicial review remained available in principle. However, Lord Justice Tuckey indicated that he would refuse permission for judicial review for the same reasons given in refusing permission to appeal.
5. The application was dismissed, subject to a Community Legal Services assessment.

• Court of Appeal (Civil Division): dismissed the renewed application for permission to appeal because the remittal decision was not a final determination of an appeal under paragraph 23 of Schedule 4 to the Immigration and Asylum Act 1999.
• Immigration Appeal Tribunal: remitted the asylum appeal for rehearing by another special adjudicator.
• Special adjudicator: made the underlying decision from which the asylum appeal was brought; the judgment does not give the citation.