V, R (on the application of) v Asylum and Immigration Tribunal & Anor

Inferior tribunals possess no inherent jurisdiction equivalent to that of the High Court. Their non-express procedural powers arise only by necessary implication from the statutory scheme, including implications required to secure fairness and justice.

An immigration tribunal may receive evidence that would be inadmissible in other proceedings and must determine its relevance and weight. Alleged unfairness should generally be assessed in the round after the merits hearing, unless proceeding would inevitably breach natural justice. Judicial review of an interlocutory tribunal decision is ordinarily premature and should be entertained only in exceptional circumstances, such as inevitable procedural unfairness.

The claimant, a Colombian national resident in the United Kingdom since infancy, challenged an interlocutory decision of the Asylum and Immigration Tribunal concerning his appeal against a deportation decision.

The Secretary of State relied on evidence concerning an alleged murder, possession of a sawn-off shotgun, criminal intelligence and spent convictions. The AIT decided that it could consider the evidence, that the appeal should proceed to a full merits hearing, and that the appropriate standard of proof need not be determined in advance.

The judicial review raised the jurisdiction of the AIT to prevent abuse of process, the fairness and admissibility of the proposed evidence, the effect of the claimant’s criminal acquittal, the standard of proof, and whether the interlocutory challenge was premature.

1. Judicial review dismissed. Permission was granted, but the substantive application was dismissed. The AIT’s decision to allow the appeal to proceed to a merits hearing was lawful.
2. The AIT is a statutory tribunal and has no inherent powers in the historical sense enjoyed by the High Court. Its non-express procedural powers are those necessarily implied by the statutory scheme. In a judicial tribunal, powers necessary to achieve fairness and justice may be implied, consistently with the express rules.
3. The AIT’s overriding objective and its power under rule 51(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 permit a wide range of evidence to be received. Relevance and weight are primarily matters for the specialist tribunal. Anonymous and hearsay evidence may lose weight, but its admission does not inevitably make the proceedings unfair. The fairness of the proceedings should ordinarily be assessed in the round after the merits hearing.
4. The claimant’s acquittal did not create an issue estoppel preventing the AIT from considering evidence that he murdered the victim or was associated with those responsible. The criminal proceedings and the AIT appeal involved different parties and different ultimate issues. The spent convictions could be considered under section 7(3) of the Rehabilitation of Offenders Act 1974 if justice could not be done without admitting them; that question was properly left to the merits hearing.
5. The AIT was not required to determine the standard of proof as a preliminary issue. The issue might prove irrelevant on the evidence and was sensibly left to be considered in the factual context of the merits hearing.
6. Judicial review of an interlocutory AIT decision is ordinarily premature where the alleged error can be raised after the final determination. The court may intervene where the claimant would inevitably be denied a fair hearing. That exceptional circumstance was not established.

This was a first-instance judicial review in the Administrative Court. The challenged decision was an interlocutory determination of the Asylum and Immigration Tribunal dated 13 January 2009. The High Court granted permission but dismissed the substantive claim.