EB (Turkey) v Secretary of State for the Home Department

On reconsideration, an immigration tribunal may make a fresh determination only for a material error of law. The issues should remain within the grounds on which reconsideration was ordered, subject to an obvious or manifest point of Convention jurisprudence. A point omitted from the Secretary of State’s decision and not raised before the first-instance judge cannot ordinarily establish such an error. A late point sprung on the other party may also be refused where reasonable preparation time is needed. The court expressed serious doubt that an appeal must be dismissed merely because the decision-maker could have reached the same result for unadvanced reasons. Government departments are held to the same standards as other litigants when seeking extensions of time.

EB, a Turkish national, applied for leave to remain as a self-employed business person under HC 510 and the Ankara Agreement. The Secretary of State refused the application. An Immigration Judge allowed EB’s appeal, but reconsideration was ordered on the ground that paragraph 21 of HC 510 might not have been properly considered.

At reconsideration, the Secretary of State raised for the first time a point based on LF (Turkey) v SSHD. The Senior Immigration Judge accepted that the point applied, but nevertheless allowed the appeal, later acknowledging that his final reasoning overlooked that conclusion. The Secretary of State sought permission to appeal out of time. The central issues were whether the new point could properly be raised on reconsideration and whether permission should be granted out of time.

Per Toulson LJ, with Rix LJ and Rimer LJ agreeing, the Court of Appeal refused the Secretary of State’s application for permission to appeal out of time.

1. Under section 103A of the Nationality Immigration and Asylum Act 2002 and rule 31 of the Asylum and Immigration Tribunal Procedural Rules 2005, reconsideration permits a fresh determination only where the original tribunal made a material error of law. The issues should be confined to those for which reconsideration was ordered, or to an alleged error based on an obvious or manifest point of Convention jurisprudence.
2. The Immigration Judge had not made a material error of law by failing to dismiss the appeal on the basis of the LF point. It was absent from the Secretary of State’s reasons, had not been raised before the Immigration Judge, and was a matter which the Secretary of State had discretion, rather than an obligation, to take. The point should therefore not have been introduced on reconsideration.
3. A party’s late introduction of a point, taking the opponent by surprise and requiring time to prepare an effective response, is itself a strong reason to refuse permission to raise it. Rule 32(2) of the 2005 Rules was not relevant to that issue.
4. The court expressed serious doubt about the suggested interpretation of section 86(3)(b) of the Nationality Immigration and Asylum Act 2002, under which an appeal could be dismissed because the decision-maker might have reached the same result for reasons not given or considered at the time. The point was left undecided.
5. The delay in seeking permission was insufficiently explained. Government departments are subject to the same expectation of prompt decisions on appeals as other litigants, and the proposed appeal did not merit an extension of time.

Application refused.

• Court of Appeal (Civil Division): refused the Secretary of State’s application for permission to appeal out of time: [2008] EWCA Civ 1595.
• Asylum and Immigration Tribunal: on reconsideration, the Senior Immigration Judge allowed EB’s appeal but later accepted that the correct result should have been dismissal because the final sentence overlooked his earlier reasoning. Permission to appeal was granted on 3 April 2008.
• Asylum and Immigration Tribunal: an Immigration Judge allowed EB’s appeal against refusal of leave. Reconsideration was ordered on 8 November 2007.