AM, R (on the application of) v Asylum and Immigration Tribunal & Anor

Where a challenge to an Asylum and Immigration Tribunal decision falls within the statutory reconsideration procedure under the Nationality, Immigration and Asylum Act 2002, judicial review is generally inappropriate and may constitute an abuse of process. Procedural complaints, including alleged bias, unfairness or exclusion of admissible evidence, can ordinarily be advanced as errors of law in the reconsideration process. Judicial review should not ordinarily be used to challenge interlocutory decisions before the tribunal has reached its substantive decision. A further challenge before another High Court judge to the same complaints considered and rejected by a High Court judge will be permissible only in the most extreme circumstances, if at all.

The claimant, a Cameroonian asylum seeker, sought permission to bring judicial review proceedings concerning interlocutory procedural decisions made by an immigration judge before the substantive asylum decision had been given. The immigration judge ultimately rejected the asylum claim. The claimant had also pursued the statutory reconsideration procedure under section 103A of the Nationality, Immigration and Asylum Act 2002. A senior immigration judge rejected reconsideration, and Bean J refused a further application on the papers, giving substantial reasons.

The tribunal and the Secretary of State opposed permission, relying on M and G [2004] EWCA Civ 1731 and Y [2005] EWHC 2845. The central issue was whether the circumstances justified departing from the general rule that challenges capable of being pursued under section 103A should proceed through that statutory route rather than judicial review.

Permission refused.

1. The statutory reconsideration procedure under section 103A of the Nationality, Immigration and Asylum Act 2002 is intended to be the normal procedure for challenging an adverse decision of the Asylum and Immigration Tribunal. It is limited to errors of law, permits only one reconsideration order in relation to an appeal under section 103A(2), and is subject to stringent time limits. Judicial review is an exceptional remedy and is generally inappropriate, and possibly an abuse of process, where the statutory procedure is available (para [5]).
2. Material procedural errors affecting a tribunal determination are errors of law capable of supporting reconsideration. Allegations such as bias, unfairness or exclusion of admissible evidence can be supported by evidence placed before the senior immigration judge and the Court of Appeal. The statutory procedure is not inappropriate merely because such evidence may be required (para [7]).
3. The claimant’s case was not distinguishable from the general rule stated by the Court of Appeal in M and G [2004] EWCA Civ 1731. It was also inappropriate to invite one High Court judge, through judicial review, to review the same complaints which Bean J had already considered and rejected. Parliament had made Bean J’s decision final. Such a course could be justified only in the most extreme circumstances, if ever (paras [8]-[9]).
4. It is generally inappropriate to challenge interlocutory decisions separately. A party should normally await the substantive decision. The court did not determine the merits of the procedural complaints, but refused permission in light of the statutory scheme and authorities (para [10]).
5. The claimant’s representatives were not at fault in seeking judicial review because the immigration judge himself had invited that course, although the judge had erred in doing so. Publicly funded costs were directed to detailed assessment (paras [11]-[14]).

The judgment records that:

• Asylum and Immigration Tribunal: an immigration judge rejected the claimant’s asylum claim.
• Senior immigration judge: rejected the claimant’s application for reconsideration under section 103A of the Nationality, Immigration and Asylum Act 2002.
• High Court: Bean J refused a further application for reconsideration on 10 November 2005. The present court refused permission for judicial review and did not sit as an appeal from that decision.