Yacoubou v Secretary of State for the Home Department

A substantive ruling on a point of law by a two-judge Court of Appeal has the same authority as a ruling by a larger constitution. It must be followed unless a recognised exception to the doctrine of precedent applies.

An asylum appellant who misses the statutory deadline may apply to the tribunal, obtain the inevitable refusal arising from its lack of power to extend time, and then seek permission from the Court of Appeal. Time nevertheless runs from the original decision. An extension requires prompt action and will ordinarily be granted only where refusal would cause manifest injustice.

On reconsideration, the asylum tribunal has discretion over procedure and need not rehear oral evidence where the original factual findings disclose no error of law. Reweighting evidence or relying on material arising after the original decision does not establish an error of law.

The court considered together applications by two unsuccessful asylum seekers, each seeking permission to appeal and an extension of time. Both had missed the applicable deadline for seeking permission from the immigration tribunal.

Yacoubou's fast-track appeal concerned return to Togo. The Asylum and Immigration Tribunal identified an error in the adjudicator's treatment of country material but, after assessing that material itself, upheld the rejection of his asylum and human-rights claims. He contended that the tribunal should have heard his evidence again.

G's appeal concerned return to Liberia. She argued that her initial application might have been communicated in time despite omission of the prescribed form, and challenged the assessment of UNHCR advice, country evidence and the risk of treatment contrary to article 3 of the European Convention on Human Rights.

The common preliminary issues were whether the procedure established in Ozdemir [2003] EWCA Civ 167 remained binding and whether the delay and prospective merits justified extensions of time.

1. Both applications for permission to appeal and for extensions of time were refused. Brooke LJ delivered the judgment, with which Dyson and Hooper LJJ agreed.

2. The court was bound to follow Ozdemir [2003] EWCA Civ 167. Its substantive ruling by a two-judge Court of Appeal had the same authority as a ruling by a larger constitution. Under that procedure, a person who applied late to the immigration tribunal could obtain a refusal based on the tribunal's inability to extend time and could then seek permission from the Court of Appeal. Time for the latter application ran from the original decision rather than the tribunal's later refusal.

3. Promptness remained essential. Each day after the tribunal lost jurisdiction was liable to weaken an application for an extension. Parliament had required rapid handling, particularly within the fast-track system. A long extension might be justified where refusal would cause manifest injustice on exceptional facts, but neither case met that standard.

4. In Yacoubou's case, the tribunal had procedural discretion under the relevant 2005 Rules when reconsidering the appeal. No application had been made under rule 22 of the Asylum and Immigration Tribunal Fast Track Procedure Rules 2005 to introduce further evidence. Having found no legal error in the adjudicator's factual findings, the tribunal was entitled to adopt those findings and assess the omitted country material itself. The proposed appeal therefore lacked merit.

5. In G's case, the court left open whether grounds faxed before midnight, without the prescribed form, amounted in substance to a timely application. Even if they did, the subsequent request for an extension was not made promptly.

6. The decision in E [2004] EWCA Civ 49; [2004] QB 1044 permitted an appellate body to correct an established and uncontroversial factual mistake existing when the original decision was made, where the appellant was not responsible for it. It did not permit subsequent evidence to be used to demonstrate that the original decision-maker had erred in law by being unaware of future events. A complaint that greater weight should have been given to UNHCR advice or other evidence raised a factual question, not an error of law.

7. The tribunal had correctly applied the article 3 standard from Hariri [2003] EWCA Civ 807. The evidence disclosed neither a personal characteristic placing G at real risk of serious ill-treatment nor a consistent pattern of gross and systematic human-rights violations in Monrovia. Poor conditions and inadequate services were insufficient.

• Court of Appeal (Civil Division): In [2005] EWCA Civ 1051, unanimously refused both applications for permission to appeal and for extensions of time.
• Asylum and Immigration Tribunal — Yacoubou: Found an error of law in the adjudicator's omission of country material, reconsidered that material, and upheld the dismissal of the asylum and human-rights appeal. It subsequently refused permission to appeal because the application was late.
• Immigration Appeal Tribunal — G: Dismissed the appeal from the adjudicator, holding that no material error of law had been shown in the assessment of the article 3 claim. It subsequently treated the application for permission to appeal as out of time.
• Adjudicators: Separately dismissed Yacoubou's appeal concerning Togo and G's appeal concerning Liberia.