HT (Cameroon) v Secretary of State for the Home Department

For the purposes of section 103B of the Nationality, Asylum and Immigration Act 2002, the relevant decision is the Tribunal’s determination of the appeal against the Home Secretary’s decision, whether made initially or on reconsideration. Reconsideration supplants the first determination. It does not create a second decision for allocating appellate jurisdiction. Where the initial determination is made in Scotland but reconsideration takes place in England, any further appeal lies to the Court of Appeal. This construction accords with the single-tier structure and the language and purpose of the legislation.

HT appealed to the Court of Appeal against an adverse determination of the Asylum and Immigration Tribunal on his asylum claim. His initial appeal was dismissed in Glasgow on 5 October 2007. On reconsideration, ordered after an alleged error of law, Senior Immigration Judge Warr made a further determination in London on 30 May 2008.

The Secretary of State raised a preliminary jurisdictional objection. The initial appeal had been decided in Scotland, while reconsideration had taken place in England. The central issue was whether section 103B(5) of the Nationality, Asylum and Immigration Act 2002 assigned jurisdiction by reference to the initial determination or to the determination reached on reconsideration.

1. Unanimous jurisdictional ruling. Sedley LJ delivered the judgment, with Keene LJ and Smith LJ agreeing. The appeal was to remain in the Court of Appeal’s list.
2. Statutory scheme. Sections 103A and 103B of the Nationality, Asylum and Immigration Act 2002, introduced by section 26 of the Asylum and Immigration (Treatment of Claimants) Act 2004, formed part of a single-tier appellate system. Reconsideration was available where an error of law had been identified in the Tribunal’s initial determination.
3. Meaning of decision. The word decision in section 103B referred to the Tribunal’s determination of the appeal against the Home Secretary’s decision. It meant either the first determination or, where reconsideration had been ordered, the determination reached on reconsideration. The latter supplanted the former for this purpose.
4. Application. The location of the initial determination in Scotland did not determine the forum for a further appeal. Since HT’s operative determination was made on reconsideration in England, the appropriate appellate court was the Court of Appeal. This interpretation gave effect to the language and purpose of the legislation and made practical sense. The court noted that the earlier policy of comity and discouragement of forum-shopping, described in R (Majead) v IAT [2003] EWCA Civ 615 and reflected in Tehrani [2004] Scot. CS 102, had been superseded by the statutory scheme. Counsel also relied on the analysis in DK (Serbia) [2006] EWCA Civ 1747.
5. Order. Appeal to be heard in the Court of Appeal.

1. Court of Appeal (Civil Division). The court ruled that a further appeal lay to the Court of Appeal because the operative Tribunal determination was made on reconsideration in England.
2. Asylum and Immigration Tribunal. The initial appeal against refusal of asylum was dismissed in Glasgow on 5 October 2007. Reconsideration was subsequently ordered, and Senior Immigration Judge Warr made a further determination in London on 30 May 2008.