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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> AM (Serbia) & Ors v Secretary of State for the Home Department [2007] EWCA Civ 16 (25 January 2007) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2007/16.html Cite as: [2007] EWCA Civ 16 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION
APPEAL TRIBUNAL
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MAURICE KAY
and
LORD JUSTICE HUGHES
____________________
AM (SERBIA); MA (PAKISTAN); MA (SUDAN) |
Appellants |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
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Upali Cooray (instructed by Messrs Thompson & Co) for the Appellant – MA (Pakistan) (2)
Raza Husain (instructed by Refugee Legal Centre) for the Appellant – MA (Sudan) (3)
James Eadie (instructed by the Treasury Solicitor) for the Respondent (1)
Philip Coppel (instructed by the Treasury Solicitor) for the Respondent (2)
James Eadie (instructed by the Treasury Solicitor) for the Respondent (3)
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Crown Copyright ©
Lord Justice Maurice Kay :
The transitional provisions
"immediately before commencement …
(b) are awaiting determination by the Immigration Appeal Tribunal."
"(b) any appeal to the Immigration Appeal Tribunal which is pending immediately before commencement shall continue after commencement as an appeal to the Asylum and Immigration Tribunal."
"The Asylum and Immigration Tribunal shall, after commencement, … subject to rules under section 106 of the 2002 Act deal with the appeal in the same manner as if it had originally decided the appeal and it was reconsidering its decision."
"(a) regulating the exercise of the right of appeal …
(b) prescribing procedure to be followed … "
"shall aim to ensure –
(a) that the rules are designed to ensure that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible, and
(b) that the rules where appropriate confer on members of the Tribunal responsibility for ensuring that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible."
"Where –
(a) a party has been granted permission to appeal to the Immigration Appeal Tribunal against an adjudicator's determination before 4th April 2005, but the appeal has not been determined by that date, and
(b) by virtue of a transitional provisions order the grant of permission to appeal is treated as an order for the Tribunal to reconsider the adjudicator's determination,
the reconsideration shall be limited to the grounds upon which the Immigration Appeal Tribunal granted permission to appeal." (emphasis added)
The problem
The answer of the AIT
"We hold that, with three reservations, Rule 62(7) means what it says. We are not persuaded that there is any reason it should not mean what it says; and in our judgment it is not unfair to have required those, who sought to take advantage of the existence of an appellate process to enlarge their grounds, to do so before the appellate process ceased to exist … there is in any event nothing in the Rules or the 2002 Act which would enable us to give a meaning to Rule 62(7) other than that which it appears on its face to bear in restricting the ambit of a reconsideration in cases to which transitional provisions apply.
The three reservations are as follows. First, in our view Rule 62(7) is to be read in the light of any order made on statutory review; such order is to be treated as though it were incorporated in the IAT's grant of permission to appeal. Secondly, Rule 62(7) cannot prevent a challenge to jurisdiction and so enlarge the jurisdiction of the Tribunal: see SS (Somalia) [2005] UKAIT 00167. Thirdly, there is also a need to make allowance for obvious points of Refugee Convention law in the Robinson [1998] QB 929 sense."
The positions of the parties to the present appeals
Construction
"… the reconsideration shall be limited to the grounds upon which the Immigration Appeal Tribunal granted permission to appeal, save where amendment is permitted by the Asylum and Immigration Tribunal in the interests of justice."
"The overriding objective of these Rules is to secure that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible; and, where appropriate, that members of the Tribunal have responsibility for ensuring this, in the interests of the parties to the proceedings and in the wider public interest."
"… the clear policy … is that all possible reasons for allowing a person to remain in the United Kingdom should normally be considered on a single occasion by the Secretary of State and on appeal, in one set of proceedings."
The challenge to Rule 62(7): vires and nationality
(1) Vires
"… where the executive has been allowed by the legislature to make law, it must abide strictly by the terms of its delegated authority."
"shall aim to ensure –
(a) that the rules are designed to ensure that proceedings … are handled as fairly, quickly and efficiently as possible … "
(2) The Wednesbury challenge
The three appeals
(1) MA (Sudan)
(2) AM (Serbia)
(3) MA (Pakistan)
Conclusion
Lord Justice Hughes:
The President of the Family Division: