Miftari v Secretary of State for the Home Department

The Immigration Appeal Tribunal has jurisdiction only where the formulated grounds of appeal identify a point of law. An unpleaded error of law in the adjudicator’s determination cannot independently supply that jurisdiction or expand the issues which the Tribunal may decide.

Where a legal error is established, the Tribunal cannot conduct a fresh factual assessment using current evidence. Unless the error resolves the case on the facts already found, the proper course is remittal. Evidence received under the statutory power must be relevant to establishing the alleged error of law.

The appellant, a Kosovan ethnic Albanian with post-traumatic stress disorder, succeeded before an adjudicator on the basis that removal to Kosovo would breach articles 3 and 8 of the ECHR because of his health and the available psychiatric treatment.

The Immigration Appeal Tribunal allowed the Secretary of State’s appeal. It held that the adjudicator had erred by concentrating on facilities in the appellant’s home area rather than Kosovo generally, and it reassessed the country evidence.

On the appellant’s appeal, the Court of Appeal considered whether the Tribunal had jurisdiction when the Secretary of State’s formulated grounds did not identify an error of law. It also considered the limits of the Tribunal’s powers if a valid point of law had been raised.

1. Appeal allowed. The IAT had no jurisdiction to entertain the Secretary of State’s appeal. Its jurisdiction was confined to points of law, and the formulated grounds were both the basis for permission and the agenda for the appeal. A legal error which existed but was not identified in those grounds could not retrospectively validate the Tribunal’s jurisdiction.

2. The alleged error on which the IAT relied was not an error of law. The adjudicator had not clearly confined his assessment to psychiatric services in Gjilan. In any event, an assumption about where the appellant would in fact live after removal was an error of fact unless it was linked to an identified legal rule.

3. The Court accepted that the adjudicator had misunderstood the very demanding humanitarian thresholds under articles 3 and 8 of the ECHR. That was an error of law, but it had not been raised in the Secretary of State’s grounds. It therefore could not confer jurisdiction upon the IAT.

4. The Court was seised only of an appeal from the IAT. It could not preserve the IAT’s determination merely because the adjudicator had made a different, unpleaded error of law. The IAT determination had to be quashed, notwithstanding that this left the adjudicator’s determination in place.

5. Although unnecessary to the result, the Court held that an IAT which identifies an error of law cannot undertake a general rehearing of the facts or reassess the case on updated evidence. It must remit unless the legal error determines the outcome on the facts already found. Evidence received under section 102(2) is confined to evidence relevant to the alleged error of law.

6. Maurice Kay LJ, with whom Keene LJ expressly agreed, added that perversity includes Wednesbury irrationality and may include a factual finding wholly unsupported by the evidence. He also confirmed the continuing force of Regina v Secretary of State for the Home Department, ex parte Robinson [1998] QB 929 for an obvious unformulated Convention point capable of assisting an appellant.

The appellant was directed to file amended grounds within 14 days.

• Court of Appeal (Civil Division): Allowed the appellant’s appeal and held that the Immigration Appeal Tribunal lacked jurisdiction because the Secretary of State’s grounds identified no point of law.
• Immigration Appeal Tribunal: Allowed the Secretary of State’s appeal, set aside the adjudicator’s decision, and concluded that removal would not breach articles 3 or 8 of the ECHR.
• Adjudicator: Allowed the appellant’s human-rights appeal, concluding that removal to Kosovo would breach articles 3 and 8 of the ECHR.