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

Finality under section 103A of the National Immigration and Asylum Act 2002 does not exclude exceptional judicial review where a court error prevented an oral hearing before the paper review and leaving the decision in place would cause serious injustice with no other remedy. A Taylor v Lawrence-type jurisdiction permits reopening in such circumstances. The paper procedure is unsuitable where disputed evidence outside the tribunal record requires assessment. An immigration appeal was unfair where the judge refused to reconsider telephone evidence without hearing argument, rejected a short health-based adjournment, proceeded without the appellant, and disregarded late witness statements in a credibility case. The decisions were set aside and a fresh hearing ordered.

AM challenged decisions made in her appeal under section 82 of the National Immigration and Asylum Act 2002 by Immigration Judge Sacks. The challenges concerned the refusal to receive evidence from two witnesses in Cameroon by telephone, the refusal to adjourn because of AM’s ill health, and the decision to determine the credibility issue without her evidence.

AM also made a paper reconsideration application under section 103A, which Bean J dismissed. The Court of Appeal had previously granted permission for judicial review and adjourned the substantive application: [2007] EWCA Civ 131. The appeal from Stanley Burnton J concerned whether Bean J’s final decision could be reopened and whether the immigration judge’s conduct denied natural justice.

1. Disposition. The appeal was allowed. Judge Sacks’s refusal to reconsider telephone evidence was set aside for reconsideration by a different immigration judge. His decision on AM’s appeal was also set aside, and the appeal was to be heard afresh by that or another different immigration judge.
2. Finality and nullity. Section 103A created a speedy paper reconsideration procedure, available once in relation to an appeal, with a final High Court decision. The alleged breach of natural justice by the immigration judge did not itself make Bean J’s judicial decision a nullity. The nullity concept applied to administrative tribunals, not to a decision of a High Court judge: Re Racal Communications Ltd [1980] 3 WLR 181. The argument based on Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 therefore provided no route to disregard Bean J’s decision.
3. Reopening jurisdiction. The court applied the exceptional inherent jurisdiction recognised in Taylor v Lawrence [2003] QB 528 to a High Court decision. The jurisdiction may apply outside the appellate jurisdiction where the court’s own mistake caused serious injustice and no other remedy exists. The court considered both the nature of the mistake and the consequences of leaving it uncorrected. The reasoning in Bremer Vulcan [1981] AC 909, and the examples discussed in Re J (a Minor) [2000] CA Transcript 230, supported that conclusion. Seray-Wurie v Hackney London Borough Council [2002] EWCA Civ 909 illustrated the related High Court jurisdiction where no further appeal was available.
4. Appropriate procedure. Ordinary judicial review was appropriate within the exception identified in R (G) v AIT, R (M v AIT) [2005] 1 WLR 1445. The paper procedure was ill-suited to disputed evidence not before the tribunal, and an unfair hearing could not properly count as the one hearing to which the statutory reconsideration guillotine applied. The court distinguished XS (Kosovo) – Adjudicator’s Conduct – Psychiatric Report) Serbia/Monte Negro [2005] UKIAT 00093, where the AIT itself had reviewed an adjudicator’s conduct.
5. Natural justice. The immigration judge’s decisions and conduct had to be assessed independently and cumulatively. Paragraph 45 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 empowered him to admit evidence by video or other electronic link. Once practical obstacles had been overcome, refusing to reconsider the link without hearing argument was a clear breach of natural justice where the evidence was important to credibility. Refusing a reasonable adjournment supported by medical evidence, proceeding without AM, and disregarding late witness statements produced the appearance of a closed mind and denied a fair hearing.
6. Although immigration judges must scrutinise ill-health adjournment applications and resist unjustified delay, they must ensure that justice is fairly administered and seen to be fairly administered. Judge Sacks fell below that standard.

• Court of Appeal (Civil Division): The present court allowed the appeal, set aside the material decisions of Immigration Judge Sacks, and ordered a fresh hearing.
• Court of Appeal (Civil Division): Earlier judgments granted permission to apply for judicial review and adjourned the substantive application: [2007] EWCA Civ 131.
• High Court: Bean J dismissed AM’s application under section 103A of the National Immigration and Asylum Act 2002. The Court of Appeal described the matter as an appeal from Stanley Burnton J and held that Bean J’s decision should have been set aside.
• Asylum and Immigration Tribunal: Immigration Judge Sacks dismissed AM’s appeal after refusing the applications concerning witness evidence and adjournment.