Secretary of State for the Home Department v Ipek

An appellate direction must take the form of a mandatory instruction. A request or advice, even if strongly expressed, does not engage a procedural rule imposing consequences for failure to comply.

Procedural rules governing asylum appeals do not empower an adjudicator to direct the Secretary of State to reconsider an asylum claim or issue a fresh refusal letter. A direction for the furnishing of particulars concerns information required for determination of the appeal, not the substantive decision which initiates the appellate process.

The applicant, a Turkish asylum seeker, challenged the Immigration Appeal Tribunal’s decision allowing the Secretary of State’s appeal from a special adjudicator’s decision. The special adjudicator had treated a note requiring the Home Office to consider the claim, consider interviewing the applicant and issue a new refusal letter as a direction under rule 33(2) of the Immigration and Asylum Appeals (Procedure) Rules 2000.

The Tribunal held that the note was a request rather than a direction and that, applying Mwanza v Secretary of State for the Home Department, the special adjudicator lacked power to make such an order. The renewed application concerned whether the note was a direction and, if so, whether it was intra vires.

1. Application dismissed. The renewed application for permission to appeal was refused.
2. A direction under the procedural rules must be in the form of an instruction of a mandatory nature. The use of the word “consider” in the special adjudicator’s note showed that it was a request, or possibly advice. It did not require the Home Office to do anything and could not constitute a direction engaging rule 33(2).
3. In any event, the special adjudicator had no power to direct the Secretary of State to reconsider the claim or issue a fresh refusal letter. The rules were procedural and did not confer jurisdiction over substantive matters. The principle in Mwanza v Secretary of State for the Home Department applied.
4. Rule 30(4)(c)(iii), concerning the furnishing of particulars requisite for determining an appeal, did not extend to requiring a further refusal letter. Such particulars relate to the case before the appellate body; the refusal letter contains the Secretary of State’s substantive decision and initiates the appellate process.
5. The procedural dispute did not determine the asylum claim. The claim remained live and had to be adjudicated on its merits, whether in the context of the existing refusal letter or a further refusal letter.

• Immigration Appeal Tribunal: Allowed the Secretary of State’s appeal from the special adjudicator’s decision.
• Court of Appeal (Civil Division): Refused the renewed application for permission to appeal.