DK (Serbia) & Ors v Secretary of State for the Home Department

A statutory reconsideration for error of law is a reconsideration of the original appeal, not a new hearing. Its jurisdiction extends to the original grounds of appeal, but directions may regulate submissions, evidence and the practical conduct of the hearing. The Tribunal should ordinarily preserve factual findings and evaluative conclusions unaffected by the identified error.

At the first stage, argument should normally be confined to the grounds on which reconsideration was ordered, subject to an obvious Convention point. Fresh evidence must be identified promptly under the procedural rules. A single hearing is ordinarily appropriate, but the governing question is whether the procedure is fair in the circumstances.

Seven linked immigration matters raised common questions about reconsideration by the Asylum and Immigration Tribunal under the post-2004 statutory scheme. The Court considered both the jurisdictional scope of a reconsideration after an alleged error of law and the procedure for deciding whether its two stages should be heard together or separately.

The individual cases concerned asylum, internal relocation and human-rights claims. They also raised procedural complaints that the Tribunal had wrongly reopened credibility findings or had decided the substantive appeal without an adjournment for further evidence.

The central issue was how far a reconsideration may revisit the original determination and what procedural fairness requires where an error of law is found.

1. Disposition. The appeal in PE was dismissed. SP’s appeal was allowed by consent and remitted to the Tribunal for a second-stage reconsideration only. The procedural challenges in AI, DK, JN and MS were rejected; the outstanding merits issues in AI, DK, JN and MS were adjourned or left to be determined separately.

2. Under section 103A of the Nationality, Immigration and Asylum Act 2002, as amended by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, reconsideration begins with the question whether the original Tribunal made a material error of law. If it did not, the original determination stands. If it did, the Tribunal must substitute a fresh decision.

3. The jurisdictional scope of reconsideration extends to the original appeal and is not confined to the grounds on which reconsideration was ordered. It remains confined to the original grounds of appeal, subject to an obvious Convention-law point. Directions cannot exclude an issue from the reconsideration, but may properly restrict evidence, submissions and hearing time.

4. In practice, reconsideration is not a rehearing. Findings of fact and conclusions unaffected by the identified error should ordinarily be adopted. They should be reopened only where fresh material, properly identified under the Rules and admissible in the interests of justice, could affect them, or where other exceptional circumstances justify reopening them.

5. The normal expectation is that both stages will be completed at one hearing. The controlling consideration is fairness. A party seeking to rely on fresh evidence must give the notice required by rule 32, and the opposing party must file any intended additional case in reply. In the absence of such material, the Tribunal may assume that no further evidence or argument is to be advanced. If the stages are separated, the Tribunal’s written reasons on error of law must clearly identify the implications for the later hearing.

6. Applying those principles, the Tribunal in PE wrongly reopened an unequivocal credibility finding, because the identified legal error concerned the objective assessment of risk rather than credibility. That error did not affect the result: the Tribunal was entitled to find, on the accepted account, that time had passed and internal relocation within Nigeria was available. In SP, the original adjudicator’s failure to consider relevant country guidance justified the first-stage finding of error, but the Tribunal’s later factual misunderstanding required a remittal limited to the substantive second stage.

• Court of Appeal (Civil Division): In [2006] EWCA Civ 1747, the Court gave guidance on Tribunal reconsiderations, dismissed PE’s appeal, allowed SP’s appeal by consent and made the procedural rulings in the remaining linked matters.

• Asylum and Immigration Tribunal: The challenged decisions were reconsideration determinations, in several instances under transitional arrangements from the former Immigration Appeal Tribunal procedure.

• Adjudicators / Immigration Judges: The original appeals concerned refusals of asylum and human-rights claims. Their factual findings and legal conclusions were the subject of the later reconsiderations.