AZ (error of law: jurisdiction; PTA practice) Iran [2018] UKUT 245 (IAC)
AZ provides insight on the correct approach to be taken in ‘error of law’ decisions, where the decision is to be remade by the tribunal. It also indicates the circumstances under which permission to appeal can be granted on grounds not brought by either party, as well as providing clarification on the effect of delay on tribunal decisions.
Factual background
The claimant is an ethnic kurd and citizen of Iran seeking asylum in the UK on the basis that he will be arrested on return to Iran because of his father’s political activity. Allegedly, the father was given a warrant for his own arrest in Iran. The Secretary of State rejected the claim. It was considered unbelievable that an arrest warrant would be given to someone before they were arrested.
The appeal to the First-tier Tribunal
The claimant appealed to the First-tier Tribunal, where there was a four month delay in the promulgation of the decision. It was not accepted that the claimant’s father had been in possession of an arrest warrant or, that the journey from Iran to England was necessary. The judge consulted the country guideline case of SB (risk on return-illegal exit) Iran CG [2009] UKAIT 00053, and found that the claimant would not be at risk. A report from Amnesty International was also consulted, which suggested that those returning to Iran having failed to be granted asylum were interrogated on return. The judge was of the view that if questions were answered truthfully, the political activity would have to be disclosed; putting the claimant at serious risk of harm. For that reason the appeal was allowed on asylum and human rights grounds.
The application for permission to appeal to the Upper Tribunal
The Secretary of State applied to the First-tier Tribunal for permission to appeal. It was argued that the claimant’s account fell within the country guidelines. Permission to appeal was granted as it was accepted that the country guidelines may not have been properly considered. The Judge raised an additional ground of delay, of his own volition. The four month delay may have meant the parties did not not receive a fair hearing.
The appeal before the Upper Tribunal
The Upper Tribunal found that the reasoning in the First-tier decision had contained an error of law so the decision would be remade with correct use of the country guidelines.
The appeal to the Court of Appeal
The claimant then sought permission to appeal from the Court of Appeal on three grounds. The first, that a jurisdictional error had been made as the judge at the remaking hearing had refused to re-examine the error of law decision. Ground two was an attack on lines 41-47 of the First-tier decision arguing that the age of the claimant had not been taken into account in relation to the evidence submitted. This ground was rejected as reasons were given at line 42 of the decision; the judge found it incredible that a warrant would be given to a person before they were arrested. Ground Three was accepted; that the Upper Tribunal’s decision could not stand as it was infected with the jurisdictional error. The Court of Appeal allowed the appeal and the parties were agreed that the matter be remitted back to the Upper Tribunal for rehearing of the claimant’s appeal on grounds one and three.
The rehearing before the Upper Tribunal
The Upper Tribunal decision on the rehearing of the appeal provides clarity on three key areas. Error of law decisions, delay and granting appeal on grounds not advanced by the claimant.
(1) Error of law decisions
The position in VOM [2016] UKUT 410, that First-tier Tribunal decisions are incomplete if there is an error in law, was maintained. The Upper Tribunal must have jurisdiction until the decision is complete. The Upper Tribunal may set aside the decision of the First-tier Tribunal. When this is done the Upper Tribunal must either remit the case to the First-tier Tribunal with directions for its reconsideration, or re-make the decision. This fact that the Upper Tribunal possesses this jurisdiction is acknowledged in Practice Direction Three of the Practice Directions of the Immigration and Asylum Tribunal 2010. AZ makes clear that the issue is not whether the tribunal has jurisdiction on this matter as it does but under what circumstances a claimant will be permitted to raise such matter. The answer is in Practice Directions 3.7; only under exceptional circumstances.
(2) Delay
Delay was recently examined in SS (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 1391. For delay to be an issue there must be a nexus between the delay and the decision being unsafe. AZ mirrors the view in RK [2007] EWCA Civ 868, that delay cannot be a substantive issue in and of itself. AZ makes clear that there must be a rational explanation as to how the delay affected the decision.
(3) Grounds for Appeal
The Robinson approach [1997] EWCA Civ 3090, which was extended to all tribunals in R (Begum) v Social Security Commissioners [2002] EWHC 401 (Admin) indicates that if there is an obvious point of conventional law that favours the appellant though they have not used it, the tribunal should apply it in their favour. Arguability is not sufficient to grant permission to appeal; there is no obligation to prolong the hearing asking for submissions on points that are merely arguable rather than obvious. If the tribunal reads the decision of the special adjudicator and there is an obvious point of law missing then the tribunal should grant leave to appeal. The Robinson approach only applies to the individual, not the secretary of state, in the immigration tribunal. The AZ decision clarifies that the ground identified must be one which has a strong prospect of success for the appellant. The basic point is that the ground must be one that is extremely sound.
Outcome
The outcome of this case was that the appeal was granted under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 for the claimant to adduce new evidence as the First-tier decision was set aside.
