Appeals in the AIT don't end when determination is reserved
Unlike other court hearings, when the witnesses in an immigration appeal have finished giving their evidence and the lawyers have completed their submissions to the Immigration Judge, the Judge generally “reserves” his or her judgment, which is called a “determination”. The determination is then dictated by the judge, typed up by the Asylum and Immigration Tribunal’s staff, and sent simultaneously to the Appellant and to the United Kingdom Border Agency (the “UKBA”). (In appeals against the refusal of asylum there are special procedures whereby the determination is served by the UKBA on the Appellant).
In SD (treatment of post-hearing evidence) Russia [2008] UKAIT 00037 (14-5-2008) the Asylum and Immigration Tribunal reconsidered the appeal of a Russian national who had been refused asylum but who had lived in the UK for more than 10 years. The immigration rules entitle someone to be granted indefinite leave to remain in the United Kingdom after they have completed a period of 10 years “continuous lawful residence”. By rule 2786A (b) (ii) lawful residence can be made up of temporary admission “where leave to remain is subsequently granted”.
The appeal was dismissed by the Immigration Judge who found that the Appellant had not had any form of leave to remain after being granted temporary admission. After the close of the hearing before the Immigration Judge the Appellant’s representative had sent in additional submissions and evidence demonstrating that the Appellant did qualify for indefinite leave to remain. According to the Asylum and Immigration Tribunal’s “note” (it isn’t a determination but a document explaining why the Tribunal sent the appeal for “second stage reconsideration”) – this evidence indicated that the Appellant had had continuous leave to remain in the UK for more than 10 years.
The Immigration Judge received this evidence and submissions before the determination was issued but said in his determination that he had no jurisdiction to consider the evidence.
The panel reconsidering the appeal (which consisted of the Asylum and Immigration Tribunal’s current President and one other Senior Immigration Judge) said that the Immigration Judge’s assertion that he did not have jurisdiction to consider the new submissions and evidence was wrong.
This was because:
“16. As is well known, in E and R the Court of Appeal accepted that a mistake of fact giving rise to unfairness was a separate head of challenge on an appeal on a point of law in the context of asylum and immigration appeals "where the parties shared an interest in cooperating to achieve the correct result". In relation to the then Immigration Appeal Tribunal, the Court concluded at para 92 that, in exercising the discretion to direct a rehearing in relation to new evidence received before the decision had been formally notified to the parties, "the principle of finality would be important" and:
"To justify reopening the case the IAT would normally need to be satisfied that there was a risk of serious injustice, because of something which had gone wrong at the hearing, or some important evidence which had been overlooked; and in considering whether to admit new evidence it should be guided by Ladd v Marshall principles, subject to any exceptional factors."
17. Hence, in the rare case where an immigration judge, prior to the promulgation of a determination, receives a submission of late evidence, then consideration must first be given to the principles in Ladd v Marshall [1954] 1WLR 1489. Under those, a tribunal should not normally admit fresh evidence unless it could not have been previously obtained with due diligence for use at the trial, would probably have had an important influence on the result and was apparently credible. If, applying that test, the judge was satisfied there was a risk of serious injustice because of something which had gone wrong at the hearing or this was evidence that had been overlooked, then it was likely to be material. In those circumstances, it will be necessary either to reconvene the hearing or to obtain the written submissions of the other side in relation to the matters included in the late submission”.
Unfortunately the Tribunal’s analysis of the Court of Appeal’s judgment in E v Secretary of State; R v Secretary of State [2004] INLR 268 is incorrect. It is true that the Court of Appeal did state that the test which must be met for the case to be “reopened” was that expressed in Ladd v Marshall. But reopening the case is different from accepting evidence or submissions before the appeal has been determined by the Asylum and Immigration Tribunal.
In explaining its statement of the law in the quotation above the Tribunal referred to paragraph 92 of the E & R judgment. Set out in full this reads:
“92. In relation to the role of the IAT, we have concluded
i) The Tribunal remained seized of the appeal, and therefore able to take account of new evidence, up until the time when the decision was formally notified to the parties;
ii) Following the decision, when it was considering the applications for leave to appeal to this Court, it had a discretion to direct a re-hearing; this power was not dependent on its finding an arguable error of law in its original decision.
iii) However, in exercising such discretion, the principle of finality would be important. To justify reopening the case, the IAT would normally need to be satisfied that there was a risk of serious injustice, because of something which had gone wrong at the hearing, or some important evidence which had been overlooked; and in considering whether to admit new evidence, it should be guided by Ladd v Marshall principles, subject to any exceptional factors.
We should emphasise that this analysis is based on the regime applicable to this case, under which the right of appeal to the IAT was not confined to issues of law (before the change made by the 2002 Act, s 101: see para 17 above).”
The Tribunal’s representation of this paragraph is wrong. It has transposed the Court of Appeal’s summary of the Immigration Appeal Tribunal’s role in the circumstances prevailing in category (ii) of paragraph 92 – i.e. “Following the decision, when it was considering the applications for leave to appeal to this Court” to the circumstances referred to category (i) of the same paragraph – i.e. when the Tribunal remains seized of the appeal before it and before the determination of the appeal is promulgated.
The Court of Appeal never purported to lay down the necessity for the parties to the appeal to satisfy the strict Ladd v Marshall conditions before the Tribunal could consider evidence or submissions sent to it before it notified the parties of its decision. The Ladd v Marshall conditions instead applied when the proceedings before the Tribunal were closed, and the Tribunal was considering an application to it for permission to appeal against its decision to the Court of Appeal.
Taking account of evidence or submissions before the decision was notified would not amount to reopening the hearing anyway – because the proceedings before the Tribunal did not close until the parties received the Tribunal's decision. Needless to say proceedings which have not closed cannot be reopened.
Even more regrettably it is likely that the Asylum and Immigration Tribunal’s mistaken interpretation of the judgment in E & R in SD (Russia) will now come to be taken as authoritative – because the Tribunal found that the Immigration Judge who had refused to consider the new submissions had materially erred in law and therefore adjourned the hearing for ‘second stage reconsideration”.
In this way the valuable principle set out in paragraph 92 (i) of the E & R judgment has been ignored by the Tribunal. On the basis of the mistaken determination in SD (Russia) the Tribunal will indicate that it is unable to consider evidence submitted to it prior to the issue of its decision unless the Ladd v Marshall test is satisfied.
