Ml (Zambia) v Sectretary of State for the Home Department

A tribunal reconsidering a case is confined to the issues remitted by the reconsideration order. It cannot determine wider matters, such as a possible claim under Article 8, merely because they might be relevant to whether the appellant should remain in the United Kingdom. An appellant does not establish material injustice by identifying arguments outside the remit, particularly where the remitted question was one of law and the tribunal’s answer was correct. Procedural fairness generally requires notice and further submissions if a judge changes a provisional view after cutting short argument; different considerations apply where the provisional view was announced after full submissions.

The appellant, a Zambian national who had remained in the United Kingdom for many years, sought indefinite leave to remain. An earlier appeal was dismissed on the fourteen-year residence and Article 8 grounds. Reconsideration was later ordered on the narrow question whether the immigration judge had erred in considering the ten-year lawful residence rule under paragraph 276.

Immigration Judge Blair-Gould initially accepted the parties’ position that the rule applied, but subsequently concluded that the appellant was not entitled to rely on it. The appeal concerned whether that change of view or the failure to consider wider residence and family-life matters caused material injustice.

Appeal dismissed. Lord Justice Stanley Burnton gave the judgment, with Lord Justices Thorpe and Wall agreeing.

1. The reconsideration order granted leave on the narrow basis of whether the earlier immigration judge had erred in considering the ten-year rule in paragraph 276 of the Immigration Rules. That was the only issue properly before Immigration Judge Blair-Gould.
2. Where a judge cuts short argument because he accepts one side’s or both sides’ submissions, fairness will generally require him to inform the parties of a later provisional change of mind and invite further submissions. Different considerations arise where the provisional decision is announced after full submissions.
3. The appellant accepted that the decision on the ten-year rule was legally correct. Matters concerning his continued presence, family life, a possible fresh claim and Article 8 were outside the reconsideration remit and could not properly have been considered by the immigration judge.
4. Since the only issue before the judge was correctly decided, and the omitted matters could not have altered that decision, the appellant suffered no material injustice. The appeal was therefore dismissed.

• Court of Appeal (Civil Division) dismissed the appeal against Immigration Judge Blair-Gould’s determination.
• Asylum and Immigration Tribunal reconsidered the matter under [AIT No. TH/01360/2005]. The determination, promulgated on 12 September 2007, held that the appellant could not rely on the ten-year rule.
• Earlier adjudication Immigration Judge Malins dismissed the appellant’s appeal on the fourteen-year residence concession and Article 8 grounds. Reconsideration was granted only on the ten-year rule issue.