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

A transitional rule which confined reconsideration of an immigration appeal to grounds previously permitted by the former tribunal was irrational. It prevented the tribunal from considering proposed grounds that were clearly arguable and potentially meritorious concerning possible breaches of the Refugee Convention or the ECHR.

The existence of power to permit amendments does not confer an unfettered right to reopen or enlarge an appeal. The tribunal should permit amendment only where the proposed point satisfies that demanding threshold. A refusal will ordinarily be challengeable only for perversity on conventional Wednesbury principles.

Three appellants had obtained permission to appeal from adjudicators to the Immigration Appeal Tribunal before that tribunal was replaced by the Asylum and Immigration Tribunal. Their substantive appeals remained pending at the date of transition. Rule 62(7) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 confined reconsideration to the grounds for which the former tribunal had granted permission.

The new tribunal considered itself unable to entertain renewed or additional grounds. The appellants appealed on the basis that Rule 62(7) should be read more broadly or was ultra vires or irrational. The central issue was whether the rule could validly exclude an arguable and potentially meritorious point of law concerning a possible breach of the Refugee Convention or the ECHR.

1. All three appeals were allowed and remitted. The cases were to be redetermined by the Asylum and Immigration Tribunal, with consideration given to whether the proposed amended or renewed grounds should be permitted. Maurice Kay LJ gave the judgment of the court. Hughes LJ and the President agreed.

2. Rule 62(7) was clear and unambiguous. As a matter of construction, it confined reconsideration to grounds for which the former Immigration Appeal Tribunal had granted permission. The court could not add an interests-of-justice exception which reversed that literal meaning. Parliament was not required to preserve every procedural protection available under the former system.

3. The rule was not shown to exceed the rule-making power merely because section 106(1A) of the Nationality, Immigration and Asylum Act 2002 required the Lord Chancellor to aim for fairness, speed and efficiency. That formulation concerned the design objective, and its criteria could pull in different directions.

4. The rule nevertheless failed conventional Wednesbury review. The statutory-review procedure did not cover wholly new grounds and might reasonably have been forgone in favour of the former power to vary grounds. The narrow Robinson jurisdiction concerning obvious unadvanced points did not provide an adequate remedy for points which an appellant wished to advance.

5. The tribunal was required to notice obvious Refugee Convention points so that the United Kingdom did not breach its international obligations. The same rationale applied to ECHR rights because section 6 of the Human Rights Act 1998 made incompatible action by public authorities, including courts and tribunals, unlawful. There was no rational basis for considering an obvious unadvanced point while excluding a point of equal force expressly drawn to the tribunal's attention. Rule 62(7) was therefore fundamentally flawed.

6. The decision was confined to transitional cases. It conferred no unrestricted right to reopen refused grounds or add new ones. Amendment should not readily be permitted unless the proposed point of law is clearly arguable and potentially meritorious in the context of a possible breach of the Refugee Convention or the ECHR. A refusal would ordinarily be challengeable only for Wednesbury perversity.

1. Court of Appeal (Civil Division): By [2007] EWCA Civ 16, unanimously allowed all three appeals and remitted the cases for redetermination by a differently constituted Asylum and Immigration Tribunal, including consideration of the proposed amendments.
2. Asylum and Immigration Tribunal: Treated the reconsiderations as confined by Rule 62(7) to grounds for which the former Immigration Appeal Tribunal had granted permission. In AM (Serbia), it also indicated that it would not have permitted the proposed amendment.
3. Immigration Appeal Tribunal: Before its abolition, granted each appellant permission to appeal on some grounds but had not determined the substantive appeals.