Swash v Secretary of State for the Home Department

On reconsideration under the unified immigration appeal regime, an Immigration Judge to whom proceedings are transferred should ordinarily receive the original determination. This remains so where an error of law has invalidated the original findings of fact, because issues identified in that determination may assist with the fresh hearing. Receipt of the decision creates no presumption of bias. The judge must decide the case independently and avoid relying on discredited findings. In rare cases, fairness or the appearance of fairness may justify a direction that the transferred judge is not given the original determination. Unless such a direction is made, any objection must be made promptly and on proper grounds.

Mr Rafiq Swash, an Afghan national whose application for further leave to remain had been refused, appealed against an immigration adjudicator’s dismissal of his asylum and human-rights claims. During transitional reconsideration proceedings, the Asylum and Immigration Appeal Tribunal found errors of law in the original determination and transferred the case for a fresh decision on the facts and outcome. A different Immigration Judge dismissed the appeal while referring to his awareness of the earlier adverse credibility findings. The central issue was whether that knowledge, and the absence of notice that the earlier determination had been considered, made the rehearing unfair or invalid.

Appeal dismissed. Lord Phillips CJ held that the new statutory regime required a practical distinction from the former de novo rehearing practice.

1. Under the amended Nationality, Immigration and Asylum Act 2002 and the transitional provisions of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, reconsideration is undertaken by the Tribunal. Where proceedings are transferred because further fact-finding is required, the transferred judge should ordinarily receive the original determination.
2. The original determination may identify issues that assist the fresh hearing, even where an error of law has invalidated all the original findings of fact. The judge must take care not to rely on discredited findings. The mere fact that the original decision is available does not create a presumption of bias. The conclusion in R v Secretary of State for the Home Department ex parte Ahmed Aissaoui [1997] Imm AR 184 was endorsed.
3. The guidance in Dritan Gashi v Secretary of State for the Home Department, developed under the former regime, was capable of application but there were good reasons not to apply it generally under the new regime. The passage relied on from AH (Sudan) v Secretary of State for the Home Department [206] UKAIT 00038 did not address a case in which all the original findings had been invalidated.
4. Where fairness or the appearance of fairness requires it, the panel identifying the error of law may direct that the proceedings be transferred to a judge who is not given the original determination. Such cases are expected to be rare. Without such a direction, the parties should assume that the determination will be provided, and any application that it should not be read must be made promptly after transfer and supported by proper grounds.
5. Mr Suchak’s references showed awareness that credibility was in issue, not that he had been influenced by the earlier findings. His reasons disclosed no other error. The proceedings were therefore fair and the appeal was dismissed.

Buxton LJ agreed, stressing the professionalism of trained decision-makers and the need for simple procedure, with reference to Field v Barnet LBC [2004] EWCA Civ 1307. Sedley LJ agreed with the result and emphasised that Rule 32(1) addresses notes or records of a previous hearing, not the use of the original determination itself.

1. Court of Appeal (Civil Division) — Appeal against the AIT’s reconsideration decision dismissed: [2006] EWCA Civ 1093.
2. Asylum and Immigration Appeal Tribunal — The Tribunal found material errors of law in the original determination, transferred the proceedings for a fresh decision, and the fresh Immigration Judge dismissed the appeal on asylum and human-rights grounds.
3. Immigration adjudicator — Mr Lawrence dismissed the appellant’s original appeal, principally because he did not accept material parts of the evidence.