NH (Afghanistan) v Secretary of State for the Home Department

A tribunal may enlarge the scope of a reconsideration hearing, but permission to do so is very exceptional. Fresh asylum or Article 3 material must be notified in advance under Rule 32 of the AIT Procedure Rules. An express concession on a point of law remains relevant when deciding whether to permit a new ground. The Robinson principle does not require a tribunal to raise a point that was not obvious in the circumstances, particularly where the appeal and reconsideration order addressed only Article 8. Refusing the new ground and the adjournment needed to consider it is lawful where the tribunal considers relevant matters and acts within its discretion.

The applicant, an Afghan national, arrived in the United Kingdom in February 2003 and claimed asylum. His asylum claim was refused, but he received limited leave to remain as an unaccompanied minor. He later appealed against refusal to extend that leave.

At the first hearing before the Asylum and Immigration Tribunal, counsel accepted that no asylum or Article 3 claim based on risk on return could be advanced without new evidence. The appeal proceeded on Article 8 grounds. Reconsideration was ordered because of an arguable error concerning Article 8. At the reconsideration hearing, the applicant sought to add an asylum and Article 3 ground. The Tribunal refused permission to amend and upheld the Article 8 decision. The central issue was whether the Tribunal should have considered the new ground despite the earlier concession, the limited scope of reconsideration, and the absence of advance notice.

The Court of Appeal, per Keene LJ, refused the renewed application for permission to appeal.

1. The scope of a reconsideration hearing can be expanded as a matter of law, but such expansion is very exceptional. This followed the guidance in DK (Serbia) v SSHD [2008] 1 WLR 1246.
2. Where a party seeks to introduce fresh material in an enlarged reconsideration hearing, Rule 32 of the AIT Procedure Rules requires advance notice. The applicant accepted that Rule 32 had not been complied with.
3. The applicant’s contention that he could not previously have appealed against the asylum refusal was wrong. Section 83 of the 2002 Act had come into force on 1 April 2003 and expressly provided a right of appeal in those circumstances. The Article 3 issues would also have been covered by an asylum claim.
4. The Robinson principle, relied on from Regina v SSHD ex p Robinson [1997] 3 WLR 1162, did not require the first immigration judge to disregard the express concession. It was not obvious in the relevant circumstances that the judge should take the point, since counsel had conceded it, the grounds for reconsideration addressed only Article 8, and the new ground was raised without notice.
5. The immigration judge considered whether an adjournment was necessary, recognising that the Secretary of State would require time to respond. The concession was a relevant matter, and no irrelevant matter was taken into account. The Senior Immigration Judge acted within the available discretion in refusing to permit the new ground with the necessary adjournment. The decision was neither unlawful nor affected by an error of law.

Order: Application refused.

• Court of Appeal (Civil Division): Richards LJ refused permission to appeal on the papers. On renewal, Keene LJ refused the application for permission to appeal and ordered that the application be refused: [2008] EWCA Civ 852.
• Asylum and Immigration Tribunal: Immigration Judge Dineen dealt with the appeal on Article 8 grounds and ordered reconsideration. Senior Immigration Judge Moulden refused permission to add the asylum and Article 3 ground and found no error of law. Tribunal reference: AIT No. AA/03253/2007.