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

An appellate immigration tribunal should not reopen an adjudicator’s credibility findings on its own initiative except in a plain and obvious case, particularly where credibility has not been challenged in the grounds of appeal. Generic matters such as failure to claim asylum in a transit country will ordinarily provide no sufficient basis.

A tribunal should hear the parties on the existing grounds of appeal before deciding whether remission is necessary. Remission before that exercise is premature. Under the 2003 procedure rules, the governing consideration is the overriding objective of securing the just, timely and effective disposal of appeals.

An Algerian national succeeded before an adjudicator on his asylum and human-rights claims. The Secretary of State appealed to the Immigration Appeal Tribunal, challenging most of the adjudicator’s conclusions but not the credibility finding. The Tribunal raised credibility of its own motion, identified other factual matters which it considered insufficiently addressed, and remitted the case to a different adjudicator.

The claimant sought judicial review. The central issues were whether credibility could be reopened and whether remission was premature.

1. Credibility. The Tribunal could raise credibility without a respondent’s challenge, but only in a plain and obvious case. This was not such a case. The Secretary of State’s reasons were generic, and the claimant had explained why he had not claimed asylum in France.
2. Remission. The Tribunal should first have heard the parties on the existing grounds of appeal. Only after considering those representations, and deciding that it could not dispose of the appeal without further findings, could it properly remit the case. The possible internal-relocation issue did not justify immediate remission because it would arise only if a safe area existed.
3. Procedure and order. The former presumption against remission under rule 23 of the Immigration and Asylum Appeals (Procedure) Rules 2000 was not material. Rule 22(1) of the 2003 Rules contained no equivalent presumption. The relevant consideration was the overriding objective in rule 4. The remission decision was quashed, the appeal was to be heard on its merits, and permission to appeal was refused. The Secretary of State was ordered to pay the costs.

The judgment records that an adjudicator allowed the claimant’s appeal on 2 May 2003. The Immigration Appeal Tribunal later allowed the Secretary of State’s appeal and remitted the case for rehearing. The Administrative Court quashed that remission decision and directed that the appeal be heard on its merits.