NJ (Iran) v Secretary of State for the Home Department

The usual restriction of an asylum appeal reconsideration to the identified errors of law concerns procedural practice, not the tribunal’s jurisdiction. The tribunal remains conceptually the same tribunal and has the whole appeal before it. Although reconsideration should normally be confined to the grounds on which it was ordered, the parties may agree that the evidence and issues should be considered afresh.

Where legally represented parties agree to a rehearing and the appellant gives evidence on that basis, the tribunal does not commit an appealable error of law merely by proceeding according to their agreement. It may be desirable for the tribunal to examine the earlier reconsideration order and clarify the intended scope, but anxious scrutiny does not invariably require it to go behind the parties’ agreed position.

An Iranian citizen claimed asylum because she feared persecution arising from her alleged activities with women’s groups and her attendance at a demonstration in Tehran. The first Immigration Judge dismissed her appeal but accepted significant parts of her account. Reconsideration was ordered because objective material arguably contradicted his finding that no arrests had occurred in connection with the demonstration.

At the reconsideration hearing, both representatives agreed that the evidence and issues should be considered afresh. Immigration Judge Birkby rejected the appellant’s credibility and dismissed the appeal. The appellant contended that the second tribunal was bound by the first judge’s favourable credibility findings and had jurisdiction only to reconsider the issue for which reconsideration had been ordered.

The central issue was whether the restricted scope of a reconsideration was jurisdictional and therefore incapable of enlargement by the parties’ agreement.

1. Appeal dismissed. The restriction of a reconsideration to the error of law identified when reconsideration was ordered was a matter of procedural practice, not a limitation upon the tribunal’s jurisdiction. Lord Justices Thomas and Lawrence Collins agreed with Lord Justice Carnwath.

2. The tribunal conducting the original appeal and the tribunal conducting the reconsideration are conceptually the same tribunal. The reconsidering tribunal therefore has the whole appeal before it. The guidance in DK (Serbia) v Secretary of State for the Home Department [2006] EWCA Civ 1747 established that argument should normally be restricted to the grounds on which reconsideration was ordered, subject to exceptional additional errors of law. The word “normally” and the tenor of that guidance showed that the restriction governed practice rather than jurisdiction.

3. The guidance in AH (Sudan) [2006] UKAIT 00038 encouraged a reconsidering tribunal generally to adopt parts of an earlier decision which had not been shown to be unsound. That was guidance directed to efficient case management or “good housekeeping”. It did not establish a jurisdictional rule that prevented the tribunal from reconsidering such matters when the parties agreed upon a wider hearing.

4. Both legally represented parties had agreed that all the evidence and issues should be considered afresh. The appellant’s representative accepted that the case should proceed as a rehearing, and the appellant gave oral evidence on the full merits. In those circumstances, she could not establish that the tribunal acted outside its powers by proceeding on the agreed basis.

5. It might have been preferable for the Immigration Judge to examine the earlier reconsideration decision and seek the parties’ specific views about it. Nevertheless, neither that omission nor the principle of anxious scrutiny required the judge to disregard the representatives’ agreement. His failure to investigate beyond that agreement was not an error of law warranting intervention by the Court of Appeal.

1. Court of Appeal (Civil Division): By [2008] EWCA Civ 77, unanimously dismissed the appeal. It held that the usual restriction upon the scope of reconsideration was procedural rather than jurisdictional and that the tribunal could proceed upon the represented parties’ agreement to consider the case afresh.

2. Asylum and Immigration Tribunal: Immigration Judge Birkby reheard the evidence and issues on the parties’ agreed basis. He rejected the appellant’s credibility and dismissed the asylum appeal.

3. Reconsideration stage: Senior Immigration Judge Waumsley ordered reconsideration, limited initially to the arguable failure to consider objective evidence that arrests had occurred. A subsequent direction recorded a material error of law and provided for a fresh decision on whether the appeal should be allowed or dismissed.

4. Original immigration appeal: Immigration Judge Macdonald dismissed the appeal. He accepted significant aspects of the appellant’s account but found that she was not of interest to the Iranian authorities and that the conduct relied upon did not reach the threshold of persecution.