SI (Bangladesh) v Secretary of State for the Home Department

An immigration appeal is procedurally unfair where the judge decides the case on a new point raised on the judge’s own initiative without giving the affected party a fair opportunity to respond. If the appellate tribunal fails to identify and correct that error, its decision must be set aside. The matter should then be remitted for appropriate further consideration.

The appellant challenged an Asylum and Immigration Tribunal decision dated 12 December 2006, made on reconsideration of an Immigration Judge Ritson decision from January 2006. The appellant sought entry clearance to work as a cleaner in the restaurant of his sponsor. The Immigration Judge relied on an apparent discrepancy about the intended employment which had not been put to the appellant for comment. The Tribunal failed to address that procedural issue. On appeal, the Secretary of State conceded that permission should be granted and the appeal allowed. The central issue was the consequence of the procedural unfairness and the appropriate next step.

Permission to appeal was granted, the extension of time was granted and the appeal was allowed.

1. The Immigration Judge had apparently raised, of his own motion, a discrepancy in the application concerning the nature of the intended employment. The judge relied on that point in reaching the decision without giving the appellant an opportunity to comment. That was procedurally unfair because the appellant was not given a fair opportunity to meet the point.
2. The Asylum and Immigration Tribunal, on reconsideration, should have identified and addressed that procedural error. Its failure to do so meant that the Tribunal’s decision could not stand and had to be set aside.
3. The parties did not agree on the appropriate course thereafter. The Secretary of State submitted that the expiry of the work permit required a new permit and a fresh application, while the appellant disputed that course. The court therefore directed the parties to attempt to agree how the matter should proceed. In default of agreement, the matter was remitted to the Asylum and Immigration Tribunal.

• Court of Appeal (Civil Division) granted permission, extended time, allowed the appeal and directed remission to the Asylum and Immigration Tribunal if the parties could not agree how the matter should proceed: [2007] EWCA Civ 1547.
• Asylum and Immigration Tribunal reconsidered the matter on 12 December 2006 but failed to address the procedural unfairness in the Immigration Judge’s decision.
• Immigration Judge Ritson made the original decision in January 2006 and relied on a new discrepancy without giving the appellant an opportunity to comment.