Chen, R (on the application of) v Secretary of State for the Home Department & Anor

Where Parliament has provided a statutory route for reviewing an asylum tribunal’s alleged error of law, judicial review is ordinarily unavailable where the two procedures are coextensive. It may remain available in the rare case involving a denial of justice, but the threshold is high. A tribunal may assess whether illness prevents a fair hearing, and the existence of a separate judicial review concerning detention or medical care does not prevent it deciding whether the asylum appeal can fairly proceed. Evidence that illness may have affected the quality of evidence does not itself establish procedural unfairness or an arguable error of law.

The claimant brought judicial review proceedings challenging the Asylum and Immigration Tribunal’s refusal to adjourn his asylum appeal and remove it from the fast-track process. He also invoked the statutory review procedure under section 103 A of the Nationality, Immigration and Asylum Act 2002.

Earlier judicial review proceedings concerning the claimant’s detention and medical treatment had been granted permission. The claimant argued that the Tribunal’s decision to proceed despite his medical condition and the grant of permission in those proceedings amounted to a denial of justice. The central issues were whether judicial review remained available despite section 103 A and whether the Tribunal had arguably erred in law by refusing an adjournment.

1. The claim for judicial review was refused. Section 103 A provides an expeditious means of reviewing an alleged error of law by the Tribunal. Judicial review is generally unavailable where it would duplicate that statutory review mechanism.

2. The exceptional jurisdiction recognised in R (AM (Cameroon)) v Asylum and Immigration Tribunal [2008] EWCA Civ 100, [2008] 1 WLR 2062 applies only in rare circumstances involving a denial of justice. This case did not approach that threshold. There was no allegation of bias or improper conduct, no important evidence had been excluded, and the Tribunal’s treatment of the medical evidence was not cursory.

3. The principles stated in R (G) v Immigration Appeal Tribunal [2004] EWCA Civ 1731, [2005] 1 WLR 1445 apply to prevent simultaneous or overlapping judicial review and statutory review proceedings where the statutory procedure is coextensive. The same principles apply under section 103 A, as confirmed in R (F (Mongolia)) v Asylum and Immigration Tribunal [2007] 1 WLR 2523.

4. The Tribunal was entitled to decide whether the claimant’s asylum, humanitarian and human rights claims could fairly be determined on the evidence before it. Illness does not necessarily prevent a person from presenting his case. Even if the claimant was in pain and his evidence might have been less effective, the proceedings were not thereby unfair.

5. The grant of permission in the separate judicial review concerning detention and medical care did not preclude the Tribunal from considering the claimant’s condition for the limited purpose of deciding whether the hearing should continue. The Tribunal gave cogent and rational reasons for refusing an adjournment, so there was no arguable error of law requiring reconsideration under section 103 A.

6. Permission for judicial review was refused, and the statutory reconsideration application was not ordered to proceed. The effect of the judgment was delayed for 14 days. No findings were made on the separate detention and medical-care proceedings.

Not stated in the judgment.