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

Procedural rules in asylum appeals must be applied in their procedural and practical context. Rules requiring notification of a change of representative remain important, but strict compliance may be waived where the Tribunal accepts a new representative. Rule 18(6) limits the grounds the Tribunal is required to consider; it does not prohibit consideration of additional grounds. Where a new representative has been accepted before the leave decision and has submitted further grounds, those grounds must be placed before the decision-maker so that the appropriate discretion can be exercised. Failure to provide that opportunity may constitute an administrative or procedural error requiring fresh consideration.

The appellant, a Somali asylum seeker, appealed against an adjudicator’s dismissal of his asylum appeal. His former solicitors submitted grounds of appeal, but he then instructed the Hammersmith and Fulham Community Law Centre, which submitted different grounds before the Immigration Appeal Tribunal decided the application. The Tribunal refused leave after considering only the former solicitors’ grounds and later refused or closed the review application. Mackay J dismissed the appellant’s judicial review claim. The appeal concerned whether the Tribunal’s acceptance of the new representative required the new grounds to be placed before, and considered by, the Vice-President despite Rules 18(4) and 18(6) and the notification requirements in Rule 35 of the Immigration and Asylum Appeals (Procedure) Rules 2002.

Appeal allowed and remitted. Latham LJ gave the leading judgment, with Thomas LJ agreeing. Pill LJ agreed with the result but expressed a partly stronger view on the obligation to consider the new grounds.

1. Former representative. Rules 35(4) and 35(6) are important minimum requirements for identifying a party’s representative. Nevertheless, a former representative retains ostensible authority until the appellate authority is notified that the representative has ceased to act. Latham LJ therefore held that the application lodged by Annon & Co, supported by Mr Khan’s grounds, remained effective under Rule 18(4).
2. Scope of Rule 18(6). Rule 18(6), which limits the grounds the Tribunal is required to consider to those included in the application, is not exclusionary. It does not prevent the Tribunal from considering additional grounds. The court applied the contextual approach in Ravichandran v SSHD [2000] 1 WLR 354, balancing orderly administration, the avoidance of delay and the need to prevent technicalities from obstructing justice.
3. Acceptance of the new representative. By accepting the Law Centre as the appellant’s representative before the leave decision, the Tribunal waived strict compliance with Rules 35(4) and 35(6). The necessary consequence was that Mr Bazini’s grounds, which had been submitted in time and were available, should have been placed before the Vice-President. Their existence was a relevant consideration, and he should have decided whether to exercise a discretion to consider them. Pill LJ considered that the Tribunal was obliged to consider the Law Centre’s grounds once it had accepted the Law Centre as representative, but did not need to resolve whether the former solicitors’ application was itself valid.
4. Earlier first-instance decisions and disposal. The court accepted that R (Hossein) v IAT [2003] EWHC 2556 (Admin) and R (Kalombo) v IAT [2004] EWHC 353 (Admin) were justified on their particular facts, but the present case differed because the Tribunal had accepted the new representative before determining leave. The matter was remitted to the Tribunal for fresh consideration under Rule 19(1). The Tribunal remained entitled to restrict consideration to the former grounds, but had to decide whether to consider the new grounds. The court did not determine their merits.

• Court of Appeal (Civil Division) allowed the appeal and remitted the application for leave to appeal to the Immigration Appeal Tribunal for fresh consideration: [2004] EWCA Civ 399.
• Queen’s Bench Division (Mackay J) dismissed the application for judicial review on 9 July 2003.
• Immigration Appeal Tribunal refused leave to appeal on 4 October 2002 and subsequently refused or closed the review application concerning the alleged administrative or procedural error.