Monde, R (on the application of) v Asylum & Immigration Tribunal & Anor

In an asylum appeal, a challenge to interlocutory tribunal decisions may fall outside the ordinary rule against using judicial review to reopen matters dealt with through a statutory review procedure, particularly where the claim was issued before the substantive tribunal decision. An exceptional case involving a flagrant breach of natural justice and prejudicial judicial conduct may also justify intervention. The renewed application was adjourned for determination by a full court.

The applicant challenged interlocutory decisions made during her appeal to the Asylum and Immigration Tribunal. The decisions refused telephone evidence from Cameroon and further adjournment of the hearing despite evidence of serious ill health. The tribunal later dismissed her asylum and human-rights appeal on the papers, and her statutory review under section 103A of the Nationality, Immigration and Asylum Act 2002 failed.

Stanley Burnton J refused permission for judicial review, relying on the finality of the statutory review procedure and the principles in M and G. The applicant renewed her application before the Court of Appeal. The central issue was whether the claim arguably fell outside the ordinary rule because it concerned interlocutory decisions issued before the substantive decision, or because the alleged conduct amounted to an exceptional breach of natural justice.

1. Wilson LJ, with whom Mummery LJ agreed, adjourned the renewed application for hearing by three judges on notice to the Asylum and Immigration Tribunal and the Secretary of State. The court made no final determination of permission or of the merits.

2. The statutory review procedure under section 103A of the Nationality, Immigration and Asylum Act 2002, including the provision that its decision was final, created considerable and potentially insuperable difficulties for any later challenge to matters already determined through that procedure.

3. Nevertheless, the applicant should have an opportunity to argue that the ordinary rule did not apply because the judicial review challenged interlocutory decisions and had been issued before the substantive tribunal decision.

4. A further possible exception was an alleged flagrant breach of natural justice involving judicial conduct prejudicial to the interests of justice. The court expressed no provisional view on whether either contention was arguable or meritorious.

5. The application was stood over on the basis that, if permission were granted, the substantive appeal or judicial review application could be heard forthwith, subject to any contrary direction.

• Court of Appeal (Civil Division): The renewed application was adjourned for hearing by three judges on notice. No final decision was made on permission or the substantive issues.
• Queen’s Bench Division, Administrative Court: Stanley Burnton J refused permission to apply for judicial review on 19 December 2005.
• Asylum and Immigration Tribunal: The tribunal dismissed the applicant’s asylum and human-rights appeal. Her statutory review application under section 103A subsequently reached a final negative conclusion.