Tataw, R (on the application of) v Immigration Appeal Tribunal

Where an immigration appeal has been rejected on a procedural basis because of an unchallenged but erroneous understanding of the facts, the Administrative Court may quash the decision even though the tribunal was not at fault. The court should ensure that a procedural mishap does not prevent consideration of a substantive statutory appeal.

Although the court may refuse relief where remittal would serve no purpose, that discretion is reserved for the most plain and obvious cases. In a sensitive asylum claim potentially engaging Article 3, where a viable appeal cannot confidently be excluded, the matter should ordinarily be remitted to the specialist tribunal.

The claimant, a Cameroonian national, sought asylum on the basis that she faced forced female circumcision. A special adjudicator dismissed her appeal after rejecting her account as wholly incredible.

Her application for leave to appeal to the Immigration Appeal Tribunal was rejected as late. The Tribunal had not been told that neither the claimant nor her representatives had received the adjudicator’s determination when it was sent. Pitchford J refused renewed permission to seek judicial review, holding that the Tribunal’s decision was inevitable on the material before it and that the proposed substantive appeal had no merit.

The Court of Appeal considered whether the Tribunal’s procedural decision could be quashed on the later evidence and whether the court should itself refuse relief rather than remit the matter.

1. The application for judicial review was allowed unanimously. Lord Justice May, with whom Lord Justices Mantell and Brooke agreed, quashed the Immigration Appeal Tribunal’s refusal of leave and remitted the matter for further consideration.

2. The claimant’s application for leave to appeal was in fact timely if her evidence as to non-receipt of the adjudicator’s determination was accepted. The Vice-President had understandably decided otherwise on the material then available. Nevertheless, the process had failed through a procedural error which was not the fault of either the claimant or the Tribunal. The court had jurisdiction to quash the decision so that the procedural obstacle did not preclude consideration of the substantive application.

3. The court rejected the contention that the deemed-receipt provision in rule 48(2)(a) of the Immigration and Asylum Appeals (Procedures) Rules 2000 permitted proof to the contrary only at the time of the original decision. No adequate alternative review procedure within the Rules had been shown, because the error was not one by the Tribunal.

4. Under rule 54.19(3) of the Civil Procedure Rules 1998, a court may decline relief where remittal would serve no purpose. Following [2002] EWCA Civ 234, however, that course should be taken only in the most plain and obvious cases. This was not such a case. The adjudicator’s adverse credibility findings might be difficult to challenge, but the substantive grounds were missing and the claimant had not previously had competent legal advice focused on them.

5. The claim concerned unfamiliar cultural practices and a possible risk contrary to Article 3 of the European Convention on Human Rights. Those features required circumspection. The Court could not conclude that a properly formulated specialist appeal was bound to fail, and held that the expert appellate tribunal, rather than the court, should decide it.

1. Court of Appeal (Civil Division): Allowed the application for judicial review, set aside the Immigration Appeal Tribunal’s refusal of leave, and permitted a fresh notice of appeal to be filed within 10 working days: [2003] EWCA Civ 925.

2. Administrative Court: Pitchford J refused the claimant’s renewed application for permission to seek judicial review on 19 July 2002.

3. Immigration Appeal Tribunal: On 18 September 2001, the Vice-President refused leave to appeal because the application appeared to be out of time and no extension had been sought.

4. Special adjudicator: Dismissed the claimant’s asylum appeal in a determination promulgated on 22 June 2001.