WM (Democratic Republic of Congo) v Secretary of State for the Home Department

In an asylum reconsideration, failure to provide or incorporate the first-stage tribunal’s written reasons is not automatically fatal. It becomes a material error where the omission means that the second tribunal proceeds on an inaccurate understanding of the issues or of counsel’s position. The reconsideration process is intended to operate as a seamless process. The second tribunal must address the concerns identified at the first stage, using an accurate account of that stage. A decision reached on the misapprehension that counsel conceded an error of law cannot safely stand where that misapprehension may have affected the tribunal’s focus. The appeal should be allowed and the matter remitted where the court cannot safely determine what would otherwise have occurred.

The appellant challenged an Asylum and Immigration Tribunal determination made on reconsideration. Earlier adjudicators had reached favourable findings, but the Secretary of State obtained permission to challenge them. At the first stage of reconsideration, the Tribunal identified errors concerning the appellant’s political profile and mixed ethnicity and recorded that counsel had accepted an error of law.

The written reasons, known as the pink form, were not available to counsel at the substantive reconsideration hearing. Counsel later stated that she had not made the recorded concession. Immigration Judge Saffer proceeded on the basis of the first-stage reasons and rejected the appellant’s case. Permission to appeal to the Court of Appeal was granted only on the failure to comply with paragraph 14.4 of the applicable practice direction. The central issue was whether that procedural failure constituted a material error of law.

1. Appeal allowed and matter remitted. The failure to annex the first-stage written reasons would not, by itself, require an otherwise impeccable decision to be overturned. Paragraph 14.4 served the practical purpose of ensuring that the second hearing occurred in the context of the first hearing and on an accurate account of it.
2. The process was intended to be seamless. The second tribunal ordinarily had to address the matters of concern identified by the first tribunal. The parties therefore needed access to the first-stage reasons so that any misunderstanding could be corrected before the substantive reconsideration.
3. Here, the first-stage Tribunal recorded an apparent concession that counsel said she had not made. The second tribunal was consequently liable to approach the case with a different focus from that which would have applied if no concession had been understood. The Court could not safely treat the error as immaterial merely because there had also been substantial argument at the first stage or because the same conclusion might ultimately have been reached.
4. The failure was material because the hearing proceeded on a misapprehension not caused by the appellant or his advisers. The relationship between the first and second determinations had to be respected, and decisions in this sensitive field had to be made without material misunderstanding.
5. Lord Justice Longmore agreed that a tribunal’s conclusion based on the mistaken belief that counsel had conceded an error of law could not safely stand on these facts. Lord Justice Carnwath emphasised that the case was exceptional on its facts but a salutary reminder of the need to communicate first-stage reasons promptly. The appeal was allowed and the matter remitted to the Asylum and Immigration Tribunal.

• Asylum and Immigration Tribunal: Immigration Judge Saffer’s determination of 4 May 2006, following reconsideration, rejected the appellant’s case.
• Court of Appeal (Civil Division): The appeal was allowed because the reconsideration proceeded without the first-stage written reasons required by paragraph 14.4 and on a material misapprehension about counsel’s position. The matter was remitted to the Asylum and Immigration Tribunal.