NB & Anor v The Secretary of State for the Home Department

A failure to comply with a procedural rule is an error of procedure within paragraph 59 of the Asylum and Immigration Tribunal (Procedure) Rules 2005. The default position is that later procedural steps remain valid, but the Tribunal may invalidate them after considering all material circumstances.

For a breach of the obligation to serve a favourable determination no later than the reconsideration application, relevant matters include the delay, any misleading statement or failure to notify the Tribunal, prejudice, the repugnance of a party pursuing a challenge while the successful party is unaware of the decision, and the merits. Absence of demonstrated prejudice or an available fair hearing is not decisive.

On a serious, unexplained and systemic breach, accompanied by a knowing misstatement and substantial delay, the Tribunal may treat the reconsideration application as invalid and leave the original favourable determination standing.

The two claimants had each succeeded, at least in part, before an Immigration Judge. The Secretary of State sought reconsideration but failed to serve the determinations on the claimants by the date of the applications.

The Court of Appeal set aside the reconsideration determinations and remitted both matters for the Tribunal to exercise its discretion under paragraph 59 of the Asylum and Immigration Tribunal (Procedure) Rules 2005: NB (Guinea), ZD (Turkey) v The Secretary of State for the Home Department [2008] EWCA Civ 1229.

Before determination, the second claimant was granted leave to remain. Her human-rights appeal was therefore statutorily abandoned, and her previously dismissed asylum appeal had not been revived. The remaining issue was whether the first claimant's reconsideration application should be invalidated because of the Secretary of State's defective and delayed service.

1. The first claimant's reconsideration application was invalid. The Tribunal exercised its discretion under paragraph 59(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 against the Secretary of State. There was consequently no valid appeal before the Upper Tribunal, and the original Immigration Judge's favourable determination remained in force ([75]-[77], [81]).

2. A failure to comply with paragraph 23(5)(a)(i) was plainly an error of procedure. Paragraph 59(1) did not automatically invalidate subsequent steps. It preserved them unless the Tribunal ordered otherwise, but conferred a broad remedial discretion ([59]-[61], [73]-[75]).

3. The discretion required a careful assessment of the nature and extent of the breach and its effect on the claimant. Relevant considerations included delay measured against the five-day reconsideration period; misleading information about service; failure to notify the Tribunal; prejudice; the repugnance of pursuing a challenge while the successful party remained unaware of the result; and the merits. Lack of direct prejudice was not determinative ([61], [65]-[69], [75]).

4. The breach warranted invalidation. The Secretary of State served the determination 19 or 20 days late, misstated compliance, gave no satisfactory explanation, and had persisted in systemic non-compliance. The claimant received notice of the challenge before receiving the successful determination and suffered resulting uncertainty and delay. The Tribunal gave significant weight to the repugnance of that position ([63]-[76]).

5. The second claimant's appeal was abandoned. Her grant and acceptance of leave to remain disposed of the human-rights appeal under section 104. The dismissed asylum appeal had never been challenged and was not thereby revived; any changed circumstances required a fresh claim ([9]-[14], [81]).

The Tribunal added, obiter, that the merits did not support the Secretary of State's portrayal of the first claimant's case as hopeless and would probably have favoured the original determination ([78]-[80]).

• Upper Tribunal (Immigration and Asylum Chamber): The Tribunal exercised the paragraph 59 discretion to invalidate the first claimant's reconsideration application. It held that the second claimant's appeal was abandoned.

• Court of Appeal: In NB (Guinea), ZD (Turkey) v The Secretary of State for the Home Department [2008] EWCA Civ 1229, the court set aside the reconsideration determinations and remitted the cases for the procedural discretion to be exercised.

• Immigration Judge: The first claimant had succeeded on human-rights and Refugee Convention grounds. The second claimant had succeeded on human-rights grounds but her asylum appeal was dismissed.