Tribunal decisions

The decision

ASYLUM AND IMMIGRATION TRIBUNAL
RS (Funding – meaning of ‘significant prospect’) Iran [2005] UKAIT 00138

THE IMMIGRATION ACTS

Heard at: Field House
On 21 September 2005
Determination Promulgated
6th October 2005
………………………………………

Before

Mr J Barnes (Senior Immigration Judge)
Mr S L Batiste (Senior Immigration Judge)

Between

Appellant
and
Secretary of State for the Home Department

Respondent

Representation:
For the appellant : Mr S Rossier, a legal representative of the IAS (Tribunal Unit)
For the respondent: Miss R Brown, Home Office Presenting Officer

This is a reported decision considering whether there is a difference of interpretation of the phrase ‘significant prospect’ in regulation 6(3) of The Community Legal Services (Asylum and Immigration Appeals) Regulations 2005 and of ‘real possibility’ in rule 26(6) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. Held: in the majority of cases there is no difference in practice and the making of the reconsideration order will usually satisfy the requirements of regulation 6(3) of the Regulations in favour of making a fiunding order (paragraphs 12 to 15); but, there will be occasions when different criteria will apply and the term ‘significant prospect’ may be applied in a more restrictive way; there is a requirement of good faith on the representative’s part – see paragraph 16 and the examples given in paragraph 17 of the determination.

FUNDING DETERMINATION AND REASONS

1. At the conclusion of the substantive reconsideration hearing, which we have subsequently dismissed in a reserved determination on the basis that the appellant made out no material error of law on the part of the Immigration Judge, Mr Rossier made an application for an order under s.103D of the Nationality, Immigration and Asylum Act 2002 for his costs to be paid out of the relevant fund, the Community Legal Service Fund established under s.5 of the Access to Justice Act 1999. Miss Brown said she did not wish to make any submissions on this issue.

Relevant provisions of primary and secondary legislation

2. The relevant provisions in s.103D for our purposes are as follows:

(1) On the application of an appellant under section 103A, the appropriate court may order that the appellant’s costs in respect of an application under section 103A shall be paid out of the Community Legal Servoice Fund established under section 5 of the Access to Justice Act 1999 (c.22).

(2) Subsection (3) applies where the Tribunal has decided an appeal following reconsideration pursuant to an order made -

(a) under section 103A(1) and,
(b) on the application of the appellant.

(3) The Tribunal may order the appellant's costs –

(a) in respect of the application for reconsideration and,
(b) in respect of the reconsideration, shall be paid out of that Fund.

For the reasons that will appear hereafter we are not in the present application concerned with any application for an order that the appellant's costs in respect of the application under s.103A shall be paid pursuant to s.103D(1).

3. Section 103 provides that the Secretary of State may make regulations about the exercise of the powers in both subsections (1) and (3) and he has done so in The Community Legal Services (Asylum and Immigration Appeals) Regulations 2005 (SI 2005, No. 966).

4. Paragraph 6 of those regulations sets out the criteria for making orders under s.103D(3) as follows:

‘6(1) The Tribunal must exercise the power to make an order under s.103D(3) in accordance with this regulation.

(2) If the Tribunal allows an appeal on reconsideration, it must make an order under s.103D(3).

(3) If the Tribunal does not allow an appeal, it must not make an order under s.103D(3) unless it is satisfied that, at the time when the appellant made the s.103A application, there was a significant prospect that the appeal would be allowed upon reconsideration.

(4) If, where paragraph (3) applies the Tribunal decides not to make an order under s.103D(3), it must give reasons for its decision.’

5. These regulations are silent as to the mode of application for a funding order which is the subject of specific provision in the Asylum and Immigration Tribunal (Procedure) Rules 2005 at Rule 33. The only part of those rules which relates to the making of the application is that contained in subparagraph 1 of rule 33 which provides as follows:

‘(1) This rule applies where -

(a) The Tribunal has reconsidered an appeal following a s.103A application made by the appellant in relation to an appeal decided in England, Wales or Northern Ireland; and

(b) The appellant's representative has specified that he seeks an order under s.103D of the 2002 Act for his costs to be paid out of the relevant fund.’

Time for notifying intended funding order application

6. The only other document relevant to the making of such an application is form AIT/103A, the application for reconsideration of an in-country application under s.103A of the 2002 Act. The headnote to the application notice makes reference to Civil Procedure Rule 54.29(1) but there is nothing in the Civil Procedure Rules which appears to make this a prescribed form nor is there any mention in the Civil Procedure Rules of any requirement in relation to applications for a funding order under s.103D of the 2002 Act save for the provision in rule 54.35 that no order as to the costs of an application under this section is to be made except, where appropriate, an order under s.103D(1) of the 2002 Act.

7. Part D of Form AIT/103A asks:

‘Is an order for the payment of costs from the Community Legal Service Fund sought under s.103D of the Nationality, Immigration and Asylum Act 2002?

Yes/No/Not Applicable

Note:

If an order for costs is sought you must answer ‘Yes’ to ensure that consideration is given to whether or not an order should be made.

Unrepresented parties, if you do not have a legal representative acting for you, or you do not have a not charity or not for profit organisation assisting you, you must answer ‘Not Applicable’.

If you were the respondent to the original appeal, you must also answer ‘Not Applicable’.

8. In this case the application for reconsideration was made in person by the appellant and the three alternative responses in part D were left undeleted although, according to the note, the first two should have been deleted as the seeking of a funding order was not then applicable. It follows therefore that no funding order can be made by us relating to the making of the application for reconsideration as opposed to appearance at the reconsideration hearing before us following the order for reconsideration by the Senior Immigration Judge who considered the application.

9. It does not appear to us, having regard to the provisions of rule 33(1) of the 2005 Procedure Rules, that there is any limitation in point of time as to the making of an application for a funding order. All that is required is for the appellant's representative to ‘specify’ that he seeks such an order under s.103D of the 2002 Act.

10. Although it is not directly in point in this reconsideration application, because the appellant was unrepresented when he made the application, it does not seem to us that a failure to complete part D of form AIT/103A would preclude the making of such an application at a later date although the Tribunal would no doubt require a cogent explanation for the failure of a representative properly to complete that part of the form. It should not be assumed that this would be regarded simply as a formality by the Tribunal. We note the wording of the note which makes it clear that an affirmative answer is required ‘to ensure’ that consideration is given to the making of a funding order. But, we do not read that as a prerequisite or as a matter which in any way fetters the natural meaning of rule 33(1)(b) which may, subject to the note of caution which we have sounded above, in our view be satisfied if the application is made at any time up to the end of the reconsideration hearing (see rule 15(5) of the current Practice Directions of the Tribunal).

11. We are satisfied that we have the power to consider the application made by Mr Rossier in respect of the costs of the hearing and the preparation for it under rule 33(2)(b).

The meaning of ‘significant prospect’ in the 2005 Regulations

12. We now turn to consider the effect of Regulation 6 of the Community Legal Service (Asylum and Immigration Appeals) Regulations 2005 and note the limitation on the power to make such an order contained in regulation 6(3) in circumstances where, as in this case, we have refused the application for reconsideration on the basis that the appellant has not demonstrated a material error of law on the part of the Immigration Judge. We are required not to make such an order unless satisfied that at the time of the application by the appellant ‘there was a significant prospect that the appeal would be allowed on reconsideration’.

13. When that application was considered by a Senior Immigration Judge and he ordered reconsideration on 12 May 2005, he did so in the following terms:

‘There is nothing in the grounds of appeal of the determination to indicate any error of law by the Immigration Judge so far as concerns whether the appellant will face any real risk of persecutory or Article 3 infringing treatment from his uncles.

It is however reasonably arguable as to whether the Immigration Judge may have erred in law in omitting to make clear what (if any) findings of fact he was making in relation to the claim that false reports had been made to the Iranian authorities that the appellant was involved with the KDPI and that security agents were said still to be looking for him in March 2004. Arguably paragraph 17 of the determination does not make sufficiently clear what precisely is the Immigration Judge’s analysis on this point and for what reason. Reconsideration is ordered on this point.’

14. The regulations require us to consider the past situation of the prospect that the appeal would be allowed as at the date of the application. It seems to us in principle that where a Senior Immigration Judge makes an order for reconsideration, it can only have been because he took the view that there was a real possibility that the appeal would be allowed upon reconsideration. This is derived from the 2005 Procedure Rules which deal with deciding applications for review at rule 26. Rule 26(6) provides as follows:

(6) The immigration judge may make an order for reconsideration only if he thinks that –

(a)the Tribunal may have made an error of law; and

(b) there is a real possibility that the Tribunal would decide the appeal differently on reconsideration.

15. We do not consider that in the majority of reconsideration hearings there will be any material difference between the tests of the ‘significant prospect’ under the Regulations and the ‘real possibility’ under the Procedure Rules. Although it is perhaps unfortunate that uniform wording could not have been adopted by those responsible for drafting the Regulations and the Rules, we must take note of the different wording adopted and we have looked at the relevant records of the Parliamentary proceedings to see if these will provide elucidation of the proper approach to interpretation of the two different phrases. The first record is of the proceedings of the First Standing Committee on Delegated Legislation on 21 March 2005 from which it appears that the Government may originally have intended the test under the Regulations to be more stringent than that prescribed under the Procedure Rules for ordering reconsideration. By the time of the proceedings before the Committee, however, the Parliamentary Under- Secretary of State for Constitutional Affairs (Mr David Lammy) is recorded as saying this:

“It will therefore be for the judiciary to determine what “significant” means in practice but the Government’s intention is that if a case is pursued in good faith through to reconsideration funding should be awarded. … the judiciary is best placed to make retrospective decisions precisely because it has built up a body of expertise in the Immigration Appeal Tribunal. … we are not providing guidance on what “significant” means, because it would be most unusual for the Government to interpret something before an interpretation has been made by the judiciary.”

Before the House of Lords, in proposing that the Regulations previously laid before the House be approved, the Parliamentary Under-Secretary of State for the Department of Constitutional Affairs (Baroness Ashton of Upholland) is recorded as saying:

“It will be for the judiciary to interpret the regulations and what “significant prospect” means, and I cannot pre-empt what that interpretation might be. However, I can clarify the Government’s intention. The purpose of the scheme is to reduce the number of weak cases moving through the appeals process and to discourage unmeritorious challenges to tribunal decisions. If an application is unsuccessful at the review stage, it will usually be because it lacked merit. And therefore we would not expect costs to be awarded. However, if an application is successful and the representative has acted in good faith, that would mean that the case had merit. In those circumstances, we should expect costs to be awarded. Every case must be dealt with on an individual basis, but representatives who pursue meritorious cases can expect to be paid.

I also assure noble Lords that an unsuccessful outcome at the reconsideration will not automatically lead to costs being refused. That is not how the scheme has been designed. The test that the tribunal must apply will be based on the prospects of success and the information that was available to the representative when the application was made. That is a specific requirement of the test in Regulation 6(3), because we realise that representatives cannot make an assessment of a case’s prospects of success based on information that they do not have.”

The difference between the tests in the Procedure Rules and the Regulations

16. In our judgment the primary guide to the exercise of our discretion should be the fact of the making of the order for reconsideration which will have been made with due consideration of the requirements of the Procedure Rules. In the majority of cases, there will, as we say above, be no material difference between the equation of the “significant prospect” test under regulation 6(3) and the “real possibility” test under the Procedure Rules which has been already applied by the Senior Immigration Judge who ordered reconsideration at the application stage. We emphasise, however, that we speak here only of the majority of cases and there will, in our judgment, remain a potentially significant group of cases where the preliminary view formed by the Senior Immigration Judge will require to be revisited for the purposes of the funding order application. These will usually, but not necessarily exclusively, involve consideration of the good faith of the pursuit of the reconsideration challenge and the examples which we give below, whilst intended to assist representatives, must not be regarded as exhaustive since each application will have to be decided on its own facts. In so doing the Tribunal will also take into account that the time constraints for the making of the reconsideration application are such that it may be impossible for the representative to take full instructions – particularly where newly instructed for the purpose of the application – and that the true position as to the strength of the challenge may not become apparent until at least some of the preparation for hearing has taken place.

17. The first example is where it subsequently appears that reconsideration has been ordered because the grounds of the application were materially misleading in a way which should have been apparent to the draftsman of the grounds. The second example is where the order for reconsideration was made inadvertently because the grounds failed to draw attention to and lay arguable grounds for challenge of existing binding precedents whether of law or country guidance or to statutory provisions which significantly damaged the prospect of success on reconsideration. Representatives are expected to keep themselves up-to-date with relevant case law and primary and secondary legislation. Representatives have a general duty to the Tribunal, as to any other court, to put all relevant case law before the court. The third example we would give is where the nature of the challenge is bias or impropriety on the part of the Immigration Judge whose decision is sought to be challenged. In such cases, we accept that the time constraints may bite particularly hard but representatives should bear in mind that the Tribunal and the former Immigration Appeal Tribunal have on numerous occasions made it clear that any such challenge must be supported by the evidence of the former advocate supplemented by transcripts of the contemporary case notes, usually of both advocates before the Immigration Judge. Such information should normally be available at an early stage of preparation and careful consideration will need to be given as to whether it supports the initial grounds on which reconsideration was ordered. Fourthly, and finally for these purposes, there will be cases where it becomes pointless to pursue the reconsideration hearing because of clarification by way of later binding precedents. This may occur frequently with pending hearings which are awaiting promulgation of definitive Country Guidance cases. Representatives should bear in mind that subsequent judgments and determinations are likely to be simply declaratory of the position which existed at the time the application was made and to consider whether it would be proper to continue with the reconsideration hearing in the light of such subsequent clarification.
18. In the present case we heard full submissions both from Mr Rossier and Miss Brown in relation to the substantive issue of material error of law and, although in the event we were satisfied that Mr Rossier failed to demonstrate such a material error of law on the part of the Immigration Judge, it was certainly an issue which we regarded as properly arguable before us. It clearly fell into what we have categorised as the majority of cases where the initial views of the Judge who ordered reconsideration should be regarded as the decisive factor in determining whether the funding order should be made within the terms of regulation 6(3).

19. For those reasons we are satisfied that there was a significant prospect that the appeal would be allowed upon reconsideration at the time when the appellant made his application and we accordingly order, pursuant to section 103D(3) of the 2002 Act, that the Appellant’s costs in respect of the reconsideration shall be paid out of the prescribed Fund.

J. BARNES
SENIOR IMMIGRATION JUDGE

3 October 2005