SK (Sri Lanka) v Secretary of State for the Home Department

Under the Asylum and Immigration Tribunal (Procedure) Rules 2005, an oral announcement of an appeal outcome is not the Tribunal’s formal determination. The operative determination is the written determination served under rule 22. This remains so where the oral announcement and written determination are inconsistent because the Tribunal later forgets or changes its preliminary view. A written determination may therefore direct further reconsideration after finding a material error of law, even if the Tribunal previously announced that the appeal would be allowed. Where a subsequent reconsideration has fully and fairly considered the appeal by applying the correct legal principles, the Court of Appeal may decline to order a further rehearing.

The appellant had pursued asylum, human-rights and leave-to-remain claims over many years. An Immigration Judge dismissed his appeal. Jackson J later ordered reconsideration, and a reconsideration hearing took place before Senior Immigration Judge Gleeson and two tribunal members.

At the end of that hearing, Judge Gleeson said that the appeal would be allowed. The subsequent written determination found material errors of law but directed a further reconsideration rather than allowing the appeal. A second reconsideration then dismissed the appeal after considering Articles 2, 3 and 8 ECHR. The appellant appealed, arguing that the oral announcement was the binding decision and that the written determination should be disregarded.

1. Appeal dismissed. The Court of Appeal held that the written determination, rather than the oral announcement, was the operative determination of the AIT.
2. Rule 22 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 requires the Tribunal, when determining an appeal, to serve a written determination containing its decision and reasons. Rule 2 defines a determination as a decision in writing to allow or dismiss the appeal. The omission of any reference to an oral determination was significant, particularly because rule 45(3) expressly permits directions to be given orally or in writing.
3. The Court agreed with R v Special Adjudicator ex parte Bashir [2002] Imm A.R. 1, decided under earlier rules which expressly contemplated an oral pronouncement. Even under those rules, the adjudicator was not functus officio until the written determination had been promulgated. The present rules gave still clearer support to the conclusion that the written determination was formal and operative.
4. The issue did not depend on whether the inconsistency resulted from negligence, illness, forgetting or a change of mind. A distinction between negligent and non-negligent amnesia would be unworkable and contrary to principle. The proper course in such circumstances was, in principle, another determination, as indicated in Bashir.
5. The Court nevertheless declined to remit the matter. Reconstituting the original tribunal would require speculative reconstruction of its thought processes, while ordering a fresh hearing before another tribunal merely to seek a different result on the same evidence would be unsatisfactory. The second reconsideration had fully, properly and fairly considered the appeal and correctly applied the relevant legal principles. That process therefore concluded the matter.

1. Court of Appeal (Civil Division) [2008] EWCA Civ 495: dismissed the appeal.
2. Asylum and Immigration Tribunal: an initial Immigration Judge dismissed the appeal. Following an order for reconsideration, the AIT found material errors of law but directed a further reconsideration; the second reconsideration dismissed the appeal.
3. High Court: Jackson J ordered reconsideration on 9 August 2006 after an earlier refusal had been reversed.