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

Rule 18(6) of the Immigration and Asylum Appeals (Procedure) Rules 2000 relieves the Immigration Appeal Tribunal of any statutory duty to consider grounds omitted from an application for leave to appeal, but it does not remove the Tribunal’s power to consider them. Consistently with Robinson v Secretary of State for the Home Department [1998] QB 929, the Tribunal must address an unraised point where it is readily discernible and has a strong prospect of success. The principle balances anxious scrutiny of asylum and human-rights claims with the need for a workable and efficient appellate procedure. Judicial review based on an unraised ground will ordinarily fail unless those criteria, or rare exceptional fairness grounds, are satisfied. Rule 18(6) is intra vires.

Two claimants sought judicial review of decisions of the Immigration Appeal Tribunal refusing leave to appeal against adverse asylum and human-rights determinations.

Ko Ko Naing alleged that the Tribunal failed to identify wider risks on return to Burma when the application for leave focused on credibility and an alleged near-arrest. Misal Eyaz challenged the refusal to consider further grounds lodged after the Tribunal had decided her application, and alleged errors in the original adjudication.

Both claims raised the extent of the Tribunal’s obligation to consider grounds not included in an application for leave under rule 18 of the Immigration and Asylum Appeals (Procedure) Rules 2000, and the vires of rule 18(6).

1. The claims for judicial review were dismissed. Rule 18(6) does not impose a statutory duty on the Tribunal to consider grounds omitted from the application for leave. By necessary implication, however, it confers a power to consider further grounds. That power must be exercised fairly and rationally, while permitting a robust approach directed to prompt and efficient administration.
2. The continuing principle in Robinson v Secretary of State for the Home Department [1998] QB 929 requires attention to an unraised point where it is both readily discernible and has a strong prospect of success. The Tribunal is not required to search the entire file for merely arguable points. The same approach may apply to an obvious error of fact, although such cases will be rare.
3. Convention rights require anxious and rigorous scrutiny of claims actually advanced. They do not impose a free-standing strict-liability obligation on immigration authorities or the Tribunal to guarantee that no person is returned in breach of the Refugee Convention or the Human Rights Convention. Applicants remain responsible for identifying the grounds and evidence on which they rely.
4. Judicial review is not a further appeal on the merits. Where an unraised point is relied on for the first time in judicial review, there must ordinarily be a public-law error satisfying the Robinson criteria. Exceptional cases involving natural justice, fairness, fresh evidence or material omissions may justify review, but such cases are likely to be rare.
5. In Naing, the alleged wider risks were neither readily discernible nor shown to have a strong prospect of success. The Adjudicator was entitled to treat the alleged near-arrest as central to credibility and to reject the account. In Eyaz, the Tribunal was entitled to refuse late further grounds which failed to comply with rule 18(4)(c), and the original grounds disclosed no arguable error with a real prospect of success.
6. Rule 18(6) was made within the power conferred by paragraph 3 of Schedule 4 to the Immigration and Asylum Act 1999. It established an expedient, workable and proportionate regime. No reading down under section 3 of the Human Rights Act 1998 was necessary.

Not stated in the judgment. The claims were first-instance applications for judicial review of decisions of the Immigration Appeal Tribunal.