AS (Afghanistan) v Secretary of State for the Home Department

Rule 42 of the Tribunal Procedure (Upper Tribunal) Rules 2008 permits the Upper Tribunal to correct a clerical mistake or accidental slip or omission in its reasons as well as its formal decision. The power is confined to correcting an error of expression so that the decision states what the Tribunal actually decided. It cannot be used to revisit substantive reasoning.

Whether the power should be exercised is fact-sensitive. Where correcting an error in reasons would require, or reasonably appear to require, later reconstruction of the Tribunal’s reasoning on a central issue, the fair course is to leave the reasons as promulgated and determine the appeal on that basis.

In a country-guidance decision, the Upper Tribunal dismissed an Afghan national’s appeal after holding that internal relocation to Kabul was reasonable. Its reasons twice stated that even 5,000 civilian casualties in a population of 4.5 million represented less than 0.01%, although the Secretary of State’s submission had correctly put the figure at about 0.1%.

On a preliminary hearing in the pending appeal, the Court of Appeal considered whether the Upper Tribunal could correct that error under rule 42 of the Tribunal Procedure (Upper Tribunal) Rules 2008, and whether correction would be proper. The Court was not asked to decide the underlying country-guidance appeal.

1. Issues determined. The Court held that rule 42 was capable of correcting accidental errors in the Upper Tribunal’s reasons, not merely in the formal notice of decision. The phrase “decision or record of a decision”, taken from the statutory scheme, was deliberately general and covered decisions promulgated in different forms. A contrary construction would serve no evident purpose and could create difficulty in appeals and later proceedings.

2. The rule applies only where the error is a clerical mistake, accidental slip or omission in expressing what the Tribunal actually decided. The Tribunal alone can ordinarily say whether that condition is met. It is not obliged to correct every minor error, but should do so where there is real value in correction. The Court did not reach a concluded view on the alternative inherent jurisdiction, although Underhill LJ and Nicola Davies LJ were attracted to Newey LJ’s view that such a limited power existed.

3. In the exceptional circumstances here, the Upper Tribunal should not exercise rule 42. The erroneous percentage and the substitution of “less than” for “about” concerned a central issue. They did not disclose a straightforward, self-evident drafting mistake. A correction could require, or be perceived as requiring, reconstruction of the judges’ unexpressed substantive reasoning after the event. That created a real perception of unfairness.

4. The pending appeal was therefore to proceed on the Upper Tribunal’s reasons as promulgated. No formal order was required.

• Court of Appeal (Civil Division): Held that rule 42 of the Tribunal Procedure (Upper Tribunal) Rules 2008 extends to accidental slips in reasons, but that it should not be used in this case.

• Upper Tribunal (Immigration and Asylum Chamber): In AS (Safety of Kabul) Afghanistan CG [2018] UKUT 0018 (IAC), re-made the decision and dismissed the appellant’s appeal on asylum, humanitarian-protection and human-rights grounds. The present proceeding was a preliminary hearing in the pending appeal from that decision.