Gardi v Secretary of State for the Home Department (No 2) (Note)

An appeal from an Immigration Appeal Tribunal determination lies only to the appeal court designated by paragraph 23 of Schedule 4 to the Immigration and Asylum Act 1999. Where the underlying adjudicator’s determination was made in Scotland, the appropriate appeal court is the Court of Session.

The Court of Appeal has no jurisdiction to entertain such an appeal. Any order which it makes in purported exercise of that jurisdiction is a nullity and must be annulled.

The appellant was one of nine Iraqi Kurdish asylum-seekers whose cases raised a common question about the Convention definition of a refugee. After the Immigration Appeal Tribunal allowed the Secretary of State’s appeals, it granted permission for the appellant’s case to serve as the lead appeal.

The Court of Appeal dismissed that appeal on 24 May 2002 in a judgment reported at [2002] 1 WLR 2755. It was later discovered that the appellant’s adjudicator had sat in Glasgow. The issue was whether the Court of Appeal had possessed jurisdiction, given that paragraph 23 of Schedule 4 to the Immigration and Asylum Act 1999 directed appeals arising from adjudicators’ determinations made in Scotland to the Court of Session.

1. The order of 24 May 2002 was declared a nullity. Ward LJ delivered the leading judgment. Keene LJ agreed, and Sir Martin Nourse authorised Ward LJ to state that he also agreed with the inevitable result.

2. Paragraph 23 of Schedule 4 to the Immigration and Asylum Act 1999 regulates appeals from the Immigration Appeal Tribunal to the appropriate appeal court. Paragraph 23(3) defines that court as the Court of Session where the appeal arises from an adjudicator’s determination made in Scotland. In every other case, it is the Court of Appeal.

3. The appellant was appealing from a determination made by an adjudicator sitting in Glasgow. His appeal should therefore have proceeded to the Court of Session. The fact that the case had been selected as a lead case and grouped with other appeals did not confer jurisdiction on the Court of Appeal.

4. Because the Court of Appeal lacked jurisdiction to entertain the appeal, it had no option but to annul its earlier order. Keene LJ added that the jurisdictional defect had been overlooked by the Court, the Civil Appeals Office, the Immigration Appeal Tribunal and counsel. Greater attention was required in future, with particular emphasis on counsel’s responsibility to identify the correct appellate court.

1. Court of Appeal: By [2002] EWCA Civ 1560, unanimously declared its order of 24 May 2002 a nullity because the appeal lay to the Court of Session.

2. Court of Appeal: On 24 May 2002, dismissed the appellant’s appeal in a judgment reported at [2002] 1 WLR 2755.

3. Immigration Appeal Tribunal: Allowed the Secretary of State’s appeal from the adjudicator and granted permission to appeal, selecting the appellant’s case as the lead case.

4. Adjudicator: An adjudicator sitting in Glasgow allowed the appellant’s asylum claim.