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

Reconsideration by the Asylum and Immigration Tribunal requires a material error of law and is not a rehearing. Its jurisdiction extends to the original grounds of appeal, but findings and conclusions unaffected by the error should ordinarily stand. They may be reopened where admissible new material could affect them or exceptional circumstances justify doing so. Argument about errors of law should normally follow the grounds on which reconsideration was ordered, subject to obvious Convention points and exceptional additional grounds.

The governing procedural requirement is fairness. Both stages should normally be completed at one hearing unless good reason requires separation. Parties must identify proposed new evidence promptly, although they need not produce it with their notice. Continued private or family life does not itself require updated evidence; a significant change may do so.

The court considered six related immigration matters involving challenges to the scope or procedure of reconsideration by the Asylum and Immigration Tribunal. The Secretary of State for the Home Department had challenged favourable determinations concerning AI, SP, DK, JN and MS. PE challenged an adverse determination. Several proceedings had begun under the former adjudicator and Immigration Appeal Tribunal structure and continued under the transitional arrangements introduced by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.

PE, a Nigerian asylum claimant, challenged the reopening of favourable credibility findings, although the reconsidering Tribunal had also rejected his claim on alternative grounds concerning current risk and internal relocation. SP, a claimant from Kosovo, obtained the Secretary of State's agreement that the reconsidering Tribunal had misunderstood material facts. The remaining cases principally raised objections to completing both reconsideration stages at one hearing. AI's claim concerned persecution in Nigeria. DK, JN and MS relied on private or family life under article 8 of the European Convention on Human Rights.

The common questions were the permissible scope of reconsideration after an error of law was identified and the procedures necessary to ensure fairness, particularly where a party wished to introduce further evidence.

The court unanimously dismissed PE's appeal and allowed SP's appeal by consent, remitting only the second stage of reconsideration. AI's appeal was adjourned for consideration of its substantive merits. Permission to appeal on procedural grounds was refused in DK, JN and MS; their remaining applications were adjourned.

1. Reconsideration retained the statutory filter of legal error. The Tribunal first had to identify a material error of law before reconsidering the substance. Its jurisdiction extended to the original grounds of appeal, including variations previously permitted, but the power to vary grounds under rule 14 was unavailable on reconsideration. The jurisdictional reasoning in AH (Scope of Section 103 Reconsideration) Sudan, [2006] UKAIT 00038, was essentially sound. Transitional reconsiderations remained subject to rule 62(7).

2. At the first stage, argument should normally be confined to the grounds on which reconsideration was ordered and obvious or manifest Convention points within R v SSHD, ex p Robinson, [1998] QB 929. Other grounds were not expressly prohibited, but their admission should be exceptional. The Tribunal nevertheless had to remain alert to other errors which could make its own decision unlawful.

3. Reconsideration was conceptually undertaken by the same body that made the original decision. Findings and conclusions unaffected by the identified error should therefore ordinarily be preserved. They should be revisited only where new material properly admitted in the interests of justice could affect them, or other exceptional circumstances justified reopening them.

4. The governing procedural test was fairness. One hearing should normally suffice unless good reason required separate stages. Procedure should be addressed at the outset, with both parties able to make submissions. A rule 32(2) notice identified the nature of proposed evidence; it did not require its production. Without an appropriate notice or reply, the Tribunal could ordinarily proceed on the existing material. Where stages were separated, written reasons should clearly explain the error and its implications for the remaining reconsideration.

5. In PE, the legal error did not invalidate the favourable credibility findings. Reopening credibility was therefore unlawful. Nevertheless, the Tribunal's alternative assessments of present risk and internal relocation, made on the assumption that his account was true, were conclusions it was entitled to reach. The appeal was dismissed.

6. In SP, the adjudicator's failure to consider relevant country guidance remained an established error of law. The subsequent factual misunderstanding justified remitting the substantive reconsideration, without reopening that first-stage conclusion.

7. The procedural objections in AI, DK, JN and MS failed. Updated article 8 evidence was necessary only where there had been a significant change; continuation of established private or family life would itself be taken into account. The court reserved the outstanding substantive issues.

• Court of Appeal: In [2006] EWCA Civ 1747 , the court dismissed PE's appeal, allowed SP's appeal by consent and remitted its second stage, and adjourned AI's appeal for a merits hearing. It refused procedural permission in DK, JN and MS and adjourned their remaining applications.
• Asylum and Immigration Tribunal: On reconsideration, the Tribunal dismissed PE's appeal on 5 April 2006 and reversed AI's favourable determination on 9 March 2006. It also substituted adverse decisions in SP, DK, JN and MS. Both reconsideration stages were completed at one hearing in AI, DK, JN and MS.
• Adjudicators and original Immigration Judges: PE's asylum and human rights appeal was dismissed on 23 July 2004; permission to appeal was granted in November 2004. AI's appeal was allowed on asylum and human rights grounds on 28 September 2004. SP's appeal was allowed following a hearing on 23 July 2004. DK's asylum appeal failed following a hearing on 27 July 2005, but his article 8 appeal succeeded. JN and MS also obtained favourable article 8 determinations. The Secretary of State obtained permission to appeal or reconsideration in those five matters.
• Transitional arrangements: PE and AI proceeded from the former adjudicator and Immigration Appeal Tribunal structure into reconsideration under the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.