Luxmyranthan v Secretary of State for the Home Department

During the transition to the single-tier Asylum and Immigration Tribunal, an appeal remitted before 4 April 2005 but heard afterwards was not automatically confined to earlier factual findings. The effect of the reconsideration procedure depended on the remitting tribunal’s directions. Directions made before commencement could constitute directions otherwise, permitting or requiring fresh findings where the case called for reconsideration of all the evidence and the applicant’s credibility as a whole. The renewed application for permission to appeal was dismissed because the immigration judge had adopted that approach and the remaining grounds had no real prospect of success.

The appellant, a Sri Lankan national, claimed asylum and human rights protection based on alleged LTTE involvement, detention and ill-treatment. An adjudicator allowed his appeal, but the IAT remitted the matter for a fresh hearing. A second adjudicator accepted aspects of his account but dismissed the appeals, and the IAT remitted the case again, directing particular attention to the alleged army file and the circumstances of his last detention.

Following the commencement of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, the rehearing became an AIT reconsideration. The immigration judge made fresh adverse credibility findings and dismissed the appeals. The central issue was whether she was required to rely on the earlier positive findings or was entitled to make fresh findings under the transitional reconsideration procedure. A further issue concerned the constitution of the tribunal.

1. Disposition. Lord Justice Richards dismissed the renewed application for permission to appeal. The proposed challenges to the immigration judge’s approach had no real prospect of success, individually or cumulatively.
2. Tribunal constitution. The complaint that the case had been heard by a single immigration judge although a two-member panel had been directed was plainly bad. Even if there had been a procedural irregularity, no objection had been taken before the immigration judge, so the point could not be raised at this stage.
3. Fresh factual findings. The second remitting tribunal plainly intended the new adjudicator to reach independent findings rather than decide the appeal on the previous adjudicator’s findings. Its directions required consideration of all the evidence and findings about what was accepted and its significance on return. The specified issues concerning the army file and the last detention could not be resolved without considering the appellant’s credibility as a whole. The immigration judge was therefore right to conduct a fresh fact-finding exercise.
4. Transitional regime. The court rejected the submission that the new regime required reconsideration solely on the basis of the earlier findings. Paragraph 14.11 of the AIT Practice Direction contemplated a rehearing. Read with paragraph 14.1, any qualification requiring reliance on original findings was subject to directions otherwise. Directions given before 4 April 2005 could satisfy that qualification. The court regarded YF [2005] UKAIT 00126 as plainly correct in its result on its facts, although it left open whether aspects of its general reasoning could be challenged.
5. Remaining grounds and order. The grounds concerning rationality, factual errors and failure to consider matters had no real prospect of success. The application was dismissed, with detailed assessment for the appellant.

• Court of Appeal (Civil Division): Permission was refused on the papers by Auld LJ. Lord Justice Richards dismissed the renewed application on 16 November 2005 in [2005] EWCA Civ 1481.
• Asylum and Immigration Tribunal: An immigration judge’s decision issued on 17 May 2005 dismissed the asylum and human rights appeals following reconsideration.
• Immigration Appeal Tribunal: In January 2005 the IAT allowed the appeal to the extent of remitting the matter to a fresh adjudicator.
• Adjudicator: A decision issued in January 2004 accepted aspects of the account but dismissed the asylum and human rights appeals.
• Immigration Appeal Tribunal: In August 2003 the IAT allowed the Secretary of State’s appeal and remitted the case for a fresh hearing.
• Adjudicator: In January 2003 Mr Cohen allowed the appeal on asylum and human rights grounds.