NB (Guinea) & Anor v Secretary of State for the Home Dept

Rules 23(4) and 23(5) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 were intra vires. A failure by the Secretary of State to serve a determination when applying for reconsideration is an error of procedure under rule 59(1), but it does not automatically invalidate the reconsideration. The AIT must exercise a discretion after considering the breach, its effect, prejudice and the repugnance of a prolonged undisclosed challenge. Failure to exercise that discretion requires remittal. An immigration judge must explain acceptance of evidence where objective material strongly casts doubt on it, and must make findings on key features of the appellant’s case before applying evidence about other categories of detainee.

These conjoined appeals arose from reconsideration proceedings that reversed favourable AIT decisions. NB’s original appeal was allowed on asylum and human rights grounds, but reconsideration resulted in dismissal. ZD’s original appeal was allowed on human rights grounds because removal created a real risk of suicide, but reconsideration also resulted in dismissal.

In both cases the Secretary of State applied for reconsideration before serving the original determination on the appellant, contrary to rule 23(5)(a)(i). NB also challenged the validity of rules 23(4) and 23(5), and argued that reconsideration had been ordered without a material error of law. The central issues were the effect of the procedural breach and whether the AIT had lawfully ordered reconsideration.

1. Disposition. Both appeals succeeded on the service-breach issue and were remitted to the AIT. NB’s ultra vires ground and challenge to the order for reconsideration were dismissed.
2. Validity of the rules. Rules 23(4) and 23(5) were within the broad rule-making power in section 106 of the Nationality, Immigration and Asylum Act 2002. Although the arrangement was unpalatable, practical reasons supported sending determinations to the Secretary of State for service on appellants, including the Home Office’s resources and the need to address the risk of absconding. The rules were not irrational or disproportionate. Bubaker v Lord Chancellor [2002] EWCA Civ 1107 supported that conclusion, subject to the need to respect access to legal process.
3. Procedural breach. Failure to comply with rule 23(5)(a)(i) was an error of procedure under rule 59(1). Rule 59(1)(a) prevented automatic invalidation. The AIT had to decide whether to invalidate subsequent proceedings by assessing the nature and extent of the breach and its effect on the appellant. Prejudice was relevant, but the absence of prejudice did not license delay. The repugnance of allowing a prolonged challenge without the successful party knowing of the decision was also relevant. The approach in HH v Secretary of State for the Home Department [2007] UKAIT 00036 and RN v Secretary of State for the Home Department [2008] UKAIT 00001 could not prevail because rule 59 had not been considered.
4. In NB’s case, the substantial delay, the incorrect service statement and the AIT’s failure to exercise its discretion required remittal. In ZD’s case, although the delay was only one day, the incorrect statement and the failure to weigh the competing considerations likewise required remittal. R (Cindo) v The Immigration Appeal Tribunal [2002] EWHC246 (Admin) supported the obligation to draw the breach and misstatement to the tribunal’s attention.
5. As to NB’s third ground, the Senior Immigration Judge was entitled to find material errors of law. The immigration judge had failed to explain acceptance of NB’s account despite objective evidence strongly suggesting that it could not be correct, had overlooked relevant evidence about political detention, and had assessed NB by reference to leaders, organisers and politically important prisoners without finding that she held any such status.

• Court of Appeal (Civil Division): Both appeals allowed on the rule 23(5)(a)(i) issue and remitted to the AIT. NB’s ultra vires and reconsideration-error grounds were dismissed.
• Asylum and Immigration Tribunal: NB’s original appeal had been allowed, but reconsideration dismissed it. ZD’s original appeal had been allowed on human rights grounds, but reconsideration dismissed it. The relevant appeal numbers were AA/09921/2006 and AA/09820/2005.