AM (Cameroon), R (on the application of) v Asylum and Immigration Tribunal

Judicial review remains available in principle notwithstanding the statutory-review procedure under section 103A of the Nationality, Immigration and Asylum Act 2002. It will, however, be granted only in exceptional and very rare cases.

Where interlocutory rulings are alleged to have produced a denial of justice at the final hearing, and the statutory paper review is not well suited to determine the complaint, a judicial-review application may be appropriate. This includes a sufficiently arguable challenge to the objectivity and integrity of the adjudicative process. A statutory-review decision stated to be final does not automatically bar consideration of that distinct judicial-review claim, particularly where the applicant was wrongly deprived of the ordered oral hearing.

The appellant, a Cameroonian asylum seeker, challenged decisions of an immigration judge who refused telephone-link evidence from Cameroon and adjournments. After the appellant became acutely unwell, the judge proceeded with her appeal in her absence and without effective representation, ultimately rejecting her claim on credibility grounds.

Her application for reconsideration under section 103A of the Nationality, Immigration and Asylum Act 2002 was rejected, including on statutory review by Bean J. A separate judicial-review claim concerning the interlocutory rulings was directed by Beatson J to be heard orally and alongside the statutory-review application, but that did not occur. Stanley Burnton J refused permission for judicial review without deciding the procedural-unfairness complaints, holding that statutory review was the appropriate route.

The central issue was whether judicial review could exceptionally remain available despite the final statutory-review decision.

1. Appeal allowed. The court granted permission to appeal and permission to apply for judicial review. It directed that the same constitution, after further argument, should decide whether to grant the substantive relief.

2. Section 103A of the Nationality, Immigration and Asylum Act 2002 did not oust judicial-review jurisdiction. Ordinarily, judicial review was a remedy of last resort and should give way to the statutory paper-review procedure. An interlocutory ruling ordinarily should not be challenged before the final decision, since procedural error may then be raised as an error of law.

3. There was nevertheless an arguable exceptional category. The complaint must go beyond asserting that an interlocutory decision was unfair in itself. It must arguably show that the final hearing was a denial of justice, in circumstances in which statutory review was not well adjusted to provide relief. A sufficiently arguable allegation affecting the objectivity, integrity or impartiality of the judicial process could meet that standard.

4. On the unchallenged material at the permission stage, there was a strong arguable case of gross procedural unfairness. The immigration judge may have prejudged the renewed telephone-evidence application, refused a meaningful opportunity to support it, fixed the resumed hearing when counsel was unavailable, and continued in the appellant’s absence without proper representation. Given the importance of the credibility issue and the potentially corroborative evidence, it was arguable that the appeal had not received the anxious scrutiny and high standards of fairness required in asylum adjudication.

5. The statutory-review decision did not conclusively bar the claim at this stage. Beatson J had ordered an oral judicial-review hearing linked with the statutory-review application. That did not happen through no fault of the appellant. The court could therefore reconsider whether the exceptional jurisdiction should be exercised, without deciding the substantive judicial-review merits.

• Court of Appeal (Civil Division): allowed the appeal from Stanley Burnton J and granted permission to apply for judicial review: [2007] EWCA Civ 131.
• High Court, Administrative Court (Stanley Burnton J): refused permission for judicial review, considering the statutory-review procedure to be the appropriate route; the judge did not decide the merits of the procedural-unfairness complaints.
• High Court (Bean J): refused statutory review under section 103A of the Nationality, Immigration and Asylum Act 2002.
• Asylum and Immigration Tribunal: the immigration judge dismissed the appellant’s asylum and human-rights appeal after refusing the relevant applications for telephone evidence and adjournments.