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

Where an immigration tribunal assesses risk on return after alleged torture, the nature of the torture may require explicit findings before the tribunal concludes that removal is safe. The Court of Appeal made no merits determination because the parties consented to quashing the tribunal’s decision and remitting the appeal. The court also gave procedural guidance: respondents must state their position clearly, skeleton arguments and an agreed bundle of authorities must generally be lodged seven days before the hearing, and breaches may lead to attendance requirements and costs consequences.

The claimant challenged an Immigration Appeal Tribunal decision that he would not face a risk on return to Sri Lanka despite having suffered torture. The appeal concerned whether the tribunal ought to have made explicit findings about the nature of the torture before determining that he was not at risk. Permission to appeal had been granted by Sedley LJ. At a late stage, the parties agreed that the tribunal’s decision should be quashed and the appeal remitted to a differently constituted tribunal, with no order as to costs save for assessment of the claimant’s costs under the Legal Services Costs Regulations. The court nevertheless held a hearing to address compliance with the recently amended Practice Direction. The central issue identified was whether the IAT ought to have made explicit findings of fact about the torture before reaching its risk assessment.

1. Disposition. By consent, the decision of the Immigration Appeal Tribunal was quashed and the appeal was remitted for consideration by a differently constituted tribunal. There was no order as to costs, save for assessment of the appellant’s costs under the Legal Services Costs Regulations.
2. Substantive issue. The appeal turned on whether the IAT ought to have made explicit findings of fact about the nature of the torture suffered in Sri Lanka before deciding that the appellant would not be at risk if returned. The court did not determine that issue on the merits because the parties had agreed the disposal by consent.
3. Preparation for appeals. The amended Practice Direction, in force from 1 July 2004, requires parties to prepare the appeal papers sufficiently before the hearing. Under paragraph 15.6, a respondent must make clear whether it merely intends to resist the appeal on the tribunal’s grounds or wishes to serve a notice of cross-appeal and file a skeleton argument. A respondent’s skeleton must be lodged no later than seven days before the hearing, and an agreed bundle of authorities must be lodged at the same time.
4. Enforcement. The Court of Appeal will refuse to make consent orders administratively where the Practice Direction has been breached. Parties may be required to attend and explain the breach, and the presiding Lord Justice may require a lawyer to explain what has or has not occurred before the hearing. Non-compliance may also have costs consequences. The judgment was released from normal citation restrictions so that practitioners understand and comply with the new regime.

• Court of Appeal (Civil Division): In [2004] EWCA Civ 1260, the tribunal’s decision was quashed by consent and the appeal was remitted to a differently constituted tribunal.
• Immigration Appeal Tribunal: The tribunal had determined that the claimant would not be at risk if returned to Sri Lanka. No separate citation for that decision was stated in the judgment.