AS (India) & Anor v Secretary of State for the Home Department

Where an appeal has been ordered to be reconsidered under section 103A(1) of the Nationality, Immigration and Asylum Act 2002, a tribunal’s decision that it lacks jurisdiction is a decision reached on reconsideration. It is not merely procedural or preliminary because the tribunal refers to rule 9 of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

Section 103B may therefore confer a further right of appeal to the Court of Appeal. Where the tribunal declines to reconsider the appeal and takes no further action, that conduct is treated as a refusal of permission to appeal for section 103B(3).

These conjoined applications concerned appeals by AS and RA against determinations made after reconsideration by the Asylum and Immigration Tribunal. In AS’s case, reconsideration was ordered by Charles J. In RA’s case, it was ordered by Senior Immigration Judge Allen.

The Senior Immigration Judges concluded respectively that there was no immigration decision carrying a right of appeal and that the AIT had no jurisdiction. The Secretary of State argued that the Court of Appeal lacked jurisdiction under section 103B of the Nationality, Immigration and Asylum Act 2002, because the appeals had not been reconsidered and the Tribunal had not refused permission. The common preliminary issue was whether the Court of Appeal had jurisdiction to hear the proposed appeals.

1. The preliminary issue was answered affirmatively. The Court of Appeal had jurisdiction to consider the proposed appeals. Whether the Senior Immigration Judges were correct on the underlying jurisdictional issues was left for a later stage.
2. Section 103B(1) permits a further appeal on a point of law where an appeal to the Tribunal has been reconsidered. Section 103B(2) defines reconsideration by reference to an order under section 103A(1) or remittal under section 103B. The fact that the present reconsiderations followed orders under section 103A(1), rather than remittal, did not alter their character.
3. Following JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78, the Tribunal had moved beyond the rule 9 stage. A determination on reconsideration that the Tribunal lacked jurisdiction was not a procedural, ancillary or preliminary decision within section 103A(7). The Court rejected the submission that JH was confined to its unusual facts. Its reasoning was that there was no good reason of principle or policy to exclude such a jurisdictional decision from review or appeal under sections 103A and 103B.
4. Section 103B(3) requires permission from the Tribunal or, if refused, the appropriate appellate court. Where a tribunal has been ordered to reconsider an appeal but declines to reconsider it and takes no further action, that conduct is treated as a refusal of permission for section 103B(3).
5. Lord Justice Sedley agreed with Lord Justice Sullivan. He added that the distinction between constitutive and adjudicative jurisdiction discussed in Watt v Ahsan [2005] EWCA Civ 990, and approved on further appeal in [2007] UKHL 51, might be relevant in other cases, but had not been necessary to determine this issue.

Applications for substantive appeals to be listed in due course for hearing.

• Court of Appeal (Civil Division): held that it had jurisdiction to consider the proposed appeals under section 103B of the Nationality, Immigration and Asylum Act 2002. The applications for substantive appeals were directed to be listed in due course.
• Asylum and Immigration Tribunal: in AS’s case, the reconsideration determination concluded that there was no immigration decision carrying a right of appeal. In RA’s case, the reconsideration determination concluded that the AIT had no jurisdiction and dismissed the purported appeal for want of jurisdiction.