CD (Jamaica) v Secretary of State for the Home Department

A tribunal may permit the withdrawal of a concession where there is good reason in all the circumstances and the opposing party can fairly meet the altered case. Its overriding task is to enable the real issues to be determined on their merits without prejudice.

An appellate court should exercise restraint when reviewing a specialist tribunal’s case-management discretion. It may intervene only where the decision falls outside the range of reasonable conclusions. A tribunal errs if it assumes that withdrawal will necessarily waste a hearing, or fails to weigh the consequences of leaving material issues such as risk on return and internal relocation unresolved.

The Secretary of State appealed against a second-stage reconsideration by the Asylum and Immigration Tribunal in CD’s deportation appeal. CD had been convicted of attempted murder and faced deportation to Jamaica. He claimed that, as a person known as “Evil Black”, he would face treatment contrary to Articles 2 and 3 of the European Convention on Human Rights.

At an earlier hearing, the Secretary of State had conceded that, if CD established that identity, he would be at risk on return. Shortly before the resumed hearing, the Secretary of State sought to withdraw that concession. The Tribunal refused permission, principally because withdrawal would require an adjournment. It consequently did not determine risk on return or internal relocation. The central issue was whether that refusal was lawful.

1. Appeal allowed. Moses LJ, with whom Rix LJ and Sir David Keene agreed, held that the Tribunal’s refusal to permit withdrawal of the concession was outside the range of reasonable conclusions.

2. The applicable approach was that stated in [2009] EWCA Civ 856. A concession is not final. A tribunal may allow its withdrawal where there is good reason in all the circumstances and no unfair prejudice. The important objective is to ensure that the real merits can be decided fairly.

3. The Court emphasised that an appellate court should be slow to interfere with an expert tribunal’s assessment of adjournment, fairness and case management. It cannot intervene merely because it would have reached a different decision. Intervention is justified where the decision is unreasonable in the legal sense.

4. The Tribunal had nevertheless made two material errors. First, it wrongly treated withdrawal as making the hearing futile and requiring a wholly wasted adjournment. It could instead have heard and decided the separable issue whether CD was “Evil Black”. Secondly, it failed properly to weigh the consequence of refusing withdrawal: the factual issues of risk on return and internal relocation would not be determined.

5. That consequence was especially material because the country guidance in [2007] UKAIT 00018 required a fact-sensitive assessment of risk from criminal gangs and of internal relocation. It also affected the strong public interest in deportation reflected in the Immigration Act 1971 and the Immigration Rules. CD would suffer no unfair prejudice because an adjournment would permit evidence and submissions on the revived issues.

6. The issues of risk on return and the reasonableness of internal relocation were remitted to the Tribunal for factual determination.

• Court of Appeal (Civil Division): By [2010] EWCA Civ 768, allowed the Secretary of State’s appeal, reversed the refusal to permit withdrawal of the concession, and remitted risk on return and internal relocation to the Tribunal.

• Asylum and Immigration Tribunal: At a second-stage reconsideration following a hearing on 24 February 2009, refused permission to withdraw the concession and treated CD as facing a serious and appreciable risk if returned to Jamaica without deciding risk or internal relocation.

• First Tribunal: Dismissed CD’s appeal on 10 April 2008. An error of law in its approach to expert evidence led to an order for a further reconsideration.