Secretary of State for the Home Department v IA (Turkey)

A later administrative decision cannot lawfully circumvent an immigration tribunal’s determination. Consistency must be assessed by considering the tribunal’s reasons as well as its formal order. Where the tribunal leaves an issue open because it is unnecessary to resolve it, a later decision addressing that issue is not necessarily inconsistent. An earlier decision must be treated as lawful unless quashed by a competent court. An unappealable decision must be challenged by judicial review and cannot ordinarily be reopened in a later appeal against a different immigration decision. Earlier unlawfulness may in principle taint a subsequent decision, but that possibility depends on the circumstances.

The respondent, a Turkish citizen, had been accepted by an immigration tribunal as a refugee whose removal would breach article 3 of the European Convention on Human Rights. The Secretary of State nevertheless granted only six months’ discretionary leave in 2004, relying on article 33(2) of the Refugee Convention. After the respondent sought further leave, the Secretary of State refused the application in 2008. The respondent appealed against that refusal.

Designated Immigration Judge Wilson accepted that the 2004 decision was unlawful but held that it could not be challenged in the 2008 appeal. On reconsideration, Senior Immigration Judge McKee held that the earlier unlawfulness infected the 2008 decision, that the respondent retained refugee status, and that article 33(2) could not justify refusing leave. The central issues were whether the 2004 decision was inconsistent with the earlier tribunal determination, whether it could be challenged in 2008, and whether the tribunal had jurisdiction to decide its lawfulness.

1. Appeal allowed. The 2009 determination was quashed. The matter was remitted to the Upper Tribunal (Immigration and Asylum Chamber) to decide whether the 2008 determination contained a material error of law on the respondent’s remaining grounds.
2. The 2004 decision was not inconsistent with the 2004 determination. Article 33(2) had been raised before the tribunal. The tribunal left the issue open because, even if article 33(2) applied, the respondent would remain a refugee, while removal would still breach article 3 of the European Convention on Human Rights. TB (Jamaica) was therefore distinguishable.
3. The 2004 decision was not unlawful on its face and had not been challenged by judicial review. The respondent’s later application and judicial review proceedings proceeded on the footing that the grant of discretionary leave was lawful. It was an abuse of process to challenge the 2004 decision in September 2008, less than four months after the judicial review proceedings had been compromised by consent.
4. Earlier unlawfulness may in principle taint a subsequent immigration decision. That possibility did not arise here. The 2004 decision was not an immigration decision under section 82(2) of the Nationality, Immigration and Asylum Act 2002, and it could not have been appealed to the tribunal. The tribunal’s jurisdiction in the appeal concerned whether the 2008 immigration decision was not in accordance with the law under section 84(1)(e). The Court accepted that the tribunal had erred in considering the lawfulness of the 2004 decision, but the error was immaterial.
5. The tribunal had not granted asylum. It had found that the respondent was a refugee. The Secretary of State had decided not to grant asylum because article 33(2), in his unchallenged view, removed the Refugee Convention’s prohibition on refoulement. There was consequently no grant of asylum to revoke under rule 339A, and rule 339BA did not govern the case. The 2004 decision was not on its face contrary to rule 334 as then in force.

• Court of Appeal (Civil Division): allowed the Secretary of State’s appeal, quashed the 2009 determination, and remitted the case to the Upper Tribunal (Immigration and Asylum Chamber) on the remaining grounds.
• Asylum and Immigration Tribunal: Senior Immigration Judge McKee allowed the respondent’s appeal in the determination dated 24 January 2009.
• Asylum and Immigration Tribunal: Designated Immigration Judge Wilson dismissed the respondent’s appeal against the 2008 decision in the determination dated 7 October 2008.