A v Secretary of State for the Home Department

An appellate tribunal may raise of its own motion a point of Refugee Convention law which is readily discernible, obvious and strongly arguable, even if the appellant did not raise it. A criticism of factual findings is not such a point. A reasonableness challenge to an adjudicator’s credibility reasoning must allege and establish perversity to found an appeal on a question of law. Under the overriding objective in the Asylum and Immigration Tribunal (Procedure) Rules 2005, late amendments may be refused where they lack sufficient merit, were served without notice and would impede efficient disposal. An unnecessary challenge to rule 62(vii) should be left for an appropriate case. The appeal was dismissed.

The appellant, a Turkish Kurd, claimed asylum after asserting that his family had sheltered a politically active relative who had escaped imprisonment in Turkey. The Home Office rejected the claim. An adjudicator disbelieved the account and found no likely adverse interest on return.

The Immigration Appeal Tribunal granted permission to appeal on the basis of fresh evidence, but the appeal became a transitional reconsideration before the Asylum and Immigration Tribunal under Article 5(2) of the Asylum and Immigration Treatment of Claimants Act 2004 (Commencement No. 5 and Transitional Provisions) Order 2005. The AIT refused to permit amended grounds under rule 62(vii), alternatively refused them as too late, and found no error of law. The central issues were whether the proposed grounds were Robinson points, whether their refusal was unlawful, and whether rule 62(vii) was ultra vires.

1. Disposition. Longmore LJ gave the leading judgment. Latham LJ and May LJ agreed. The Court of Appeal unanimously dismissed the appeal.
2. The SSHD ex parte Robinson principle, as stated in [1998] QB 929, permits an appellate tribunal or court to raise of its own motion a readily discernible and obvious point of Refugee Convention law which is strongly arguable, even if the appellant has not taken it. The proposed grounds did not satisfy that standard.
3. The first ground merely challenged the adjudicator’s factual assessment of whether a prisoner had been released for medical treatment. Evidence that hunger strikes continued did not establish that prisoners were released in the relevant period. A report not produced to the court was not pursued. A minor error concerning the length of the appellant’s alleged stay was immaterial. The passport and visa arguments concerned whether the appellant remained of interest to the authorities after leaving his home area. They did not undermine the central credibility findings, were not apparent on the face of the adjudicator’s decision, and were not Robinson points.
4. A challenge to the reasonableness of an adjudicator’s credibility reasoning must come close to alleging and proving perversity before it can found an appeal on a question of law. The first amended ground fell far short of that threshold.
5. The AIT’s refusal to permit the amendments was not an error of law. The overriding objective in the Asylum and Immigration Tribunal (Procedure) Rules 2005 required proceedings to be handled fairly, quickly and efficiently. The amendments were produced on the morning of the hearing without notice, lacked sufficient merit, and would probably have required an adjournment. The absence of a formal objection by the Secretary of State did not make refusal unfair.
6. The Secretary of State conceded that a proper Robinson point could be considered in a transitional reconsideration notwithstanding rule 62(vii). To the extent that the AIT had taken the contrary view, that was an error of law, but it was immaterial because none of the proposed grounds was a Robinson point. The court declined to determine whether rule 62(vii) was ultra vires or otherwise unlawful, since that issue was unnecessary and would be academic in this appeal. It was left for determination in an appropriate case.

Order: Appeal dismissed.

• Court of Appeal (Civil Division) — [2006] EWCA Civ 149: dismissed the appeal.
• Asylum and Immigration Tribunal — on 4 April 2005, treated the pending IAT appeal as a transitional reconsideration, refused amended grounds under rule 62(vii), alternatively refused them as too late, and found no error of law.
• Immigration Appeal Tribunal — granted permission to appeal on 2 September 2004 on the basis that fresh evidence concerning the alleged relative might affect the adjudicator’s credibility findings.
• Adjudicator — on 9 June 2004, disbelieved the appellant’s account and found no well-founded fear of persecution or human-rights impediment to return.