Dhar, R (on the application of) v Immigration Appeal Tribunal & Anor

An appeal to the Immigration Appeal Tribunal under section 101(1) of the Nationality, Immigration and Asylum Act 2002 lies only where the adjudicator’s determination involves a point of law. Inadequate reasoning may constitute such a point where the basis of the decision cannot be identified with sufficient certainty. An adjudicator need not address every point at length, but the determination must explain the decision sufficiently for the parties and any appellate or reviewing court to understand it. When remitting a case, the Tribunal must weigh the loss of favourable credibility findings alongside the defects, the likely scope of the rehearing, and whether the original adjudicator can fairly and effectively correct the errors.

The claimant sought judicial review of the Immigration Appeal Tribunal’s decision of 15 March 2005. The Tribunal had allowed the Secretary of State’s appeal from an adjudicator’s decision of 4 June 2004, which had allowed the claimant’s asylum and human-rights appeal, and had remitted the case for rehearing by a different adjudicator.

The claimant challenged the Tribunal’s jurisdiction, arguing that no point of law arose. He also argued that remission to a different adjudicator was unfair because it deprived him of favourable credibility findings. The issues were whether the adjudicator had sufficiently addressed sufficiency of state protection and whether the Tribunal had acted fairly in directing a rehearing before a different adjudicator.

1. Judicial review dismissed. The Tribunal had jurisdiction under section 101(1) of the Nationality, Immigration and Asylum Act 2002 because the adjudicator’s reasoning involved a point of law.

2. The adjudicator’s reference to sufficiency of protection, consideration of Bangladesh’s political circumstances, and conclusion that the governing party’s presence did not itself establish sufficient protection indicated an understanding of the principle in Horvath v Secretary of State for the Home Department [2001] 1 AC 489. The result did not itself demonstrate legal error, particularly since the Secretary of State accepted that the adjudicator could reach that result by correctly applying the principle.

3. However, the adjudicator’s reasons were insufficient. It was unclear whether the decision concerned the ability or willingness of the Bangladeshi authorities to protect the claimant, whether it turned only on the 2001 election and local conditions, or whether it addressed wider national conditions and relocation. Applying Bahrami v Immigration Appeal Tribunal [2003] EWHC 1453 Admin, the determination had to be read as a whole and in a common-sense manner, but it still had to enable the parties and an appellate or reviewing body to understand why the issue was decided as it was.

4. The Tribunal therefore properly treated the inadequacy of reasoning as a point of law and had power under section 102(1)(c) of the Act to remit the appeal. In deciding whether to remit to the original or a different adjudicator, it had to consider the claimant’s loss of favourable credibility findings, the nature and extent of the defects, the likely scope of the rehearing, and whether the original adjudicator could fairly and reasonably correct the errors.

5. Given the absence of reasons, the Tribunal could not confidently conclude that remission to the original adjudicator would dispose of the appeal fairly and expeditiously. Directing a rehearing before a different adjudicator was therefore fair and reasonable. There was no order as to costs.

• Immigration Appeal Tribunal: On 15 March 2005, allowed the Secretary of State’s appeal from the adjudicator’s decision of 4 June 2004 and remitted the case for rehearing by a different adjudicator or panel.
• High Court (Administrative Court): Dismissed the judicial review challenge and made no order as to costs.