Zaier, R (on the application of) v Immigration Appeal Tribunal & Anor

In an asylum appeal, a special adjudicator’s case-management powers are procedural. Rule 30 of the Immigration and Asylum Appeals (Procedure) Rules 2000 does not permit a direction requiring the Secretary of State to interview a claimant, reconsider the asylum merits, or make a fresh decision. The overriding objective cannot enlarge that jurisdiction or convert a substantive direction into a procedural one. Rule 33(2)(a) cannot justify allowing an appeal without considering its merits where the alleged non-compliance concerns an unlawful direction. The adjudicator must determine the merits, including in a non-compliance refusal under Rule 340 of the Immigration Rules. A timetable and particulars direction may be made where the Secretary of State voluntarily elects to interview, but the interview itself cannot be ordered.

The appellant’s asylum claim was refused under Rule 340 of the Immigration Rules without consideration of its merits. Special adjudicators repeatedly directed the Secretary of State to interview him. When no interview occurred, a further adjudicator allowed the appeal without considering the merits under Rule 33(2)(a) of the Immigration and Asylum Appeals (Procedure) Rules 2000.

The Immigration Appeal Tribunal held that the directions were outside the adjudicators’ jurisdiction and remitted the appeal for determination on its merits. The Administrative Court dismissed the appellant’s judicial review claim. The central issue before the Court of Appeal was whether the directions were procedural directions for the conduct of the appeal, or substantive directions requiring reconsideration of the asylum claim.

1. Appeal dismissed. Auld LJ gave the principal judgment. Clarke LJ and Jonathan Parker LJ agreed.
2. Under section 8(4) of the Asylum and Immigration Appeals Act 1993, an appeal against removal directions is determined by considering whether removal would breach the Convention. A special adjudicator therefore has the function of deciding the asylum claim on its merits. The adjudicator has no power to remit the matter to the Secretary of State for consideration or reconsideration. The Tribunal’s separate power of remission reflects its appellate review function: Mwanza v Secretary of State [2001] Imm AR 557 and R (on the application of Emlik) v IAT [2002] EWHC 1279 (Admin) were applied or followed.
3. Rule 30 of the Immigration and Asylum Appeals (Procedure) Rules 2000 authorises procedural directions concerning the conduct of the appeal. It does not authorise a direction requiring the Secretary of State to interview an asylum claimant, reconsider the merits, or issue a fresh decision. Such a direction is substantive and ultra vires. The wider ratio of Mwanza was followed.
4. The overriding objective in Rule 30(2), even if remission might sometimes save time, cannot be used to bend the statutory scheme or expand the adjudicator’s jurisdiction. Rule 33(2)(a) consequently could not be invoked because the Secretary of State had failed to comply with directions which were themselves unlawful.
5. Rule 340 did not impose a duty to interview. The Secretary of State could establish the facts by other means. The fact that the refusal had been made without considering the asylum merits did not alter the adjudicator’s obligation to determine the appeal on its merits, including any explanation, evidence or material supplied by the claimant.
6. Clarke LJ added that, if the Secretary of State voluntarily wished to interview the claimant, a special adjudicator could set a timetable for that interview and require particulars of the Secretary of State’s case to facilitate the appeal. Those additional observations did not confer power to order an interview or a reconsideration.

• Court of Appeal (Civil Division): Dismissed the appeal and upheld the conclusion that the special adjudicator’s directions and consequential allowance of the appeal were unlawful.
• Administrative Court: Dismissed the claim for judicial review of the Immigration Appeal Tribunal’s decision.
• Immigration Appeal Tribunal: Allowed the Secretary of State’s appeal, held that the directions were outside the adjudicators’ powers, and remitted the matter for determination on its merits.