Wani, R (on the application of) v Secretary of State for the Home Department & Anor

An Asylum and Immigration Tribunal reconsideration is a single process. Its preliminary finding that the original tribunal made a material error of law is ordinarily interlocutory and cannot properly be challenged by judicial review before the reconsideration concludes. Any persisting error can be addressed by an appeal against the final determination.

The parties must receive adequate reasons for the preliminary finding. A transferred tribunal should not normally reopen that finding, although exceptionally it may consider a fresh argument, overlooked binding authority or material country guidance. In transitional cases, reconsideration remains confined to the grounds on which permission was granted, save for an obvious Convention point favouring the asylum seeker which has a strong prospect of success.

The claimant, a Pakistani Ahmadi, obtained an adjudicator’s decision allowing his asylum appeal and his claim under article 9 of the European Convention on Human Rights, although the adjudicator found that articles 2 and 3 were not engaged. The Secretary of State obtained permission to appeal on four grounds.

Following the creation of the single-tier Asylum and Immigration Tribunal, the appeal became a reconsideration. The Tribunal preliminarily found material errors of law and transferred the proceedings for further determination. The claimant sought judicial review, contending that no such errors existed and that the adjudicator’s decision should stand.

The central issues were whether judicial review of the preliminary ruling was premature, whether the Tribunal’s reasons had to be disclosed, how far the preliminary ruling could later be revisited, and whether the adjudicator had materially erred in law.

1. The claim was dismissed. A reconsideration under section 103A of the Nationality, Immigration and Asylum Act 2002 is one continuous process. A decision that the original tribunal made a material error of law, followed by an adjournment or transfer for further findings, is an interlocutory ruling. Judicial review of that ruling should not ordinarily be entertained because it is premature and would frustrate the requirement for expeditious reconsideration. Any error persisting in the final determination can be challenged by appeal to the Court of Appeal. Such a claim would normally amount to an abuse of process, although the court did not characterise this particular, important test claim as abusive.

2. The written reasons for the preliminary finding must be disclosed to the parties. They must identify both the errors found and why they constitute errors. Disclosure enables the parties to understand the issues for the resumed hearing, prepare relevant evidence and identify any exceptional basis for revisiting the preliminary ruling. If the reasons are to form part of the final determination, they must be adequate to stand alone. Otherwise, the final tribunal must amplify or amend them.

3. A transferred judge or panel should not normally permit the preliminary issues to be reargued. Exceptionally, however, the parties may show that binding authority or material country guidance was overlooked, or advance a genuinely fresh argument. Fresh matters should be identified in advance. In transitional cases, rule 62(7) confines reconsideration to the grounds on which the former Immigration Appeal Tribunal granted permission, subject to the exception in R v Secretary of State for the Home Department, ex p Robinson [1998] QB 929 for an obvious Convention point favouring an asylum seeker which has a strong prospect of success.

4. Although the Tribunal’s stated reasons were inadequate, the adjudicator’s determination contained material errors requiring reconsideration. Internal relocation had not been addressed. Allowing asylum while finding that the article 3 threshold was not crossed, and allowing the appeal under article 9 contrary to R (Ullah) v Special Adjudicator [2004] 2 AC 323, were errors of law. The credibility findings were also confusing and inadequately reasoned. Mere brevity, however, is not an error: a poor factual decision qualifies as an error of law only where the reasons are clearly inadequate or the findings irrational.

5. Permission to seek judicial review was granted at the rolled-up hearing, but the substantive claim was dismissed. Permission to appeal was refused and there was no order for costs.

• High Court (Administrative Court): Granted permission at a rolled-up hearing but dismissed the judicial review claim. Permission to appeal was refused.
• Asylum and Immigration Tribunal: Decided that the adjudicator had made material errors of law and transferred the reconsideration for further determination.
• Adjudicator: Allowed the claimant’s asylum appeal and his claim under article 9 of the European Convention on Human Rights, while rejecting his claims under articles 2 and 3.