The decision

AN (Only loser can appeal) Afghanistan [2005] UKIAT 00097


Date of Hearing: 9 November 2004
Date Determination notified:

Mr C M G Ockelton (Deputy President)
His Honour Judge N Ainley (Vice President)
Ms C Jarvis (Vice President)





For the Appellant: Mr T Grieg, Home Office Presenting Officer
For the Respondent: No appearance

Under the 2002 Act and the 2003 Rules, an appeal to the Tribunal only lies if the party appealing seeks the reversal of the Adjudicator’s decision to allow or dismiss the appeal.


1. The Appellant is the Secretary of State for the Home Department. He has been granted permission to appeal against the determination of an Adjudicator, Mr R D Crawford, dismissing the appeal of the Respondent (whom we shall call the Claimant), a citizen of Afghanistan, against his decision on 21 September 2003 to give directions for his removal as an illegal entrant after refusing asylum.

2. In reaching his determination, the Adjudicator said this, at paragraph 35:

“I address my first attention to the Appellant’s age. He says he is sixteen. The Home Office dispute this. No medical evidence has been submitted. I do not have sufficient information to reject the Appellant’s assertion that he is sixteen. I therefore must approach this case on the basis that he is sixteen and still a minor.”

3. He then went on, as we have indicated, to dismiss the appeal. The Secretary of State sought permission to appeal against the Adjudicator’s determination on the ground that the Adjudicator erred in law in his approach to the Claimant’s age: he had reversed the burden of proof.

4. The Vice President who gave permission to appeal wrote this:

“It is no more than arguable that in section 101.1 of the 2002 Act ‘… appeal to the Tribunal against the adjudicator’s determination …’ includes a right of appeal against decisions on incidental points such as age, irrespective of the result.”

5. The Claimant himself did not appeal against the Adjudicator’s determination and has made no contribution to these proceedings. Mr D O’Callaghan, counsel who happened to be in court on another matter, gave us valuable assistance in resolving the issues arising from the grant of permission. Before resolving that issue, we should record our firm opinion that the Adjudicator did err as alleged in the grounds of appeal. It is for the Claimant to establish any fact upon which he relies. In this appeal, the Claimant claimed that because of his minority he should not be removed from the United Kingdom: it was his task to establish his minority. The Adjudicator clearly approached the issue of the Claimant’s age on the basis that once the Claimant had made an assertion, it was for the Secretary of State to adduce sufficient evidence to reject the assertion. That cannot be right. No doubt a matter can be proved simply on the basis of an assertion, but it is for the Adjudicator to decide, on all the evidence, whether the assertion is to be trusted.

6. As we say, we are confident that the Adjudicator erred in law in his approach to deciding the Claimant’s age. What is much less clear is whether the Adjudicator did make any decision on the issue. It is more than arguable that the Adjudicator reached no firm conclusion, but merely structured the rest of his determination around what the position would be if the Claimant were aged sixteen.

7. Whether or not the Adjudicator’s determination is to be read as including a firm decision on the Claimant’s age, the crucial question in this appeal is whether, given that the Claimant failed in his appeal to the Adjudicator, the Secretary of State has any right of appeal to the Tribunal. To put that question more concisely, can the winner appeal? A court’s first reaction to that question might be that a winner has no need to appeal: but the issue in this jurisdiction is not so clear. That is demonstrated by the decision of the Court of Appeal in R v SSHD ex parte Danaie [1998] INLR 124. In that case, the Court of Appeal held that if the Secretary of State proposed to ignore a finding of fact made by an Adjudicator, or to proceed on a different basis, he should explain why; it also restricted the circumstances in which he could do so to cases where the Adjudicator’s decision either was demonstrably flawed or made without reference all the relevant evidence now available. Even though the Adjudicator’s treatment of the issue of age was, as we have indicated, demonstrably flawed in this case, one can see that the Secretary of State would want to take advantage of the appellate process for setting aside any incidental determination of fact by an Adjudicator that was adverse to the Government, whatever the outcome of the appeal. It is, however, very far from clear that the decision of the Court of Appeal in Danaie has the force which it had. At the time Danaie was decided, there was an unrestricted right of appeal to the Tribunal, subject only to obtaining leave to appeal. An appeal could be brought by either party, and the grounds of appeal were not restricted to errors of law. Thus the Secretary of State could challenge any incidental findings of fact by appeal to the Tribunal. One can well understand the unwillingness of the courts to allow the Secretary of State to ignore such findings of fact, when he had had a proper opportunity to challenge them by appeal.

8. That is not the position now. The provision in both the 1971 and 1999 Acts allowing “any party dissatisfied with the determination of an Adjudicator” to appeal to the Tribunal was replaced by different wording in the 2002 Act: and that Act also restricts the jurisdiction of the Tribunal to cases where the Adjudicator’s determination disclosed a material error of law.

9. We must now consider the statutory scheme for appeals to the Tribunal under the 2002 Act. Sections 82 and 83 of that Act set out various decisions which can be appealed to an Adjudicator. Section 84 lists, comprehensively and exclusively, the grounds upon which an appeal may be brought. Section 85 provides that, where an appeal is brought, it should be treated as including an appeal against any other decision in respect of which the Appellant has a right of appeal, and that the Adjudicator shall consider any grounds the Appellant has given for remaining in the United Kingdom pursuant to a s120 (“one-stop”) notice in addition to other grounds of appeal.

10. Section 86 is as follows:

“86. Determination of appeal

(1) This section applies on an appeal under section 82(1) or 83.

(2) The adjudicator must determine-
(a) any matter raised as a ground of appeal (whether or not by virtue of section 85(1)), and
(b) any matter which section 85 requires him to consider.

(3) The adjudicator must allow the appeal in so far as he thinks that-
(a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or
(b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.

(4) For the purposes of subsection (3) a decision that a person should be removed from the United Kingdom under a provision shall not be regarded as unlawful if it could have been lawfully made by reference to removal under another provision.

(5) In so far as subsection (3) does not apply, the adjudicator shall dismiss the appeal.

(6) Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes of subsection (3)(b).”

11. Section 87 permits an Adjudicator who has allowed an appeal to give a direction for the purpose of giving effect to his decision, and s87(4) provides that such a direction should be treated as part of the determination of the appeal for the purposes of s101. Section 101 itself allows a party to an appeal to an Adjudicator (subject to permission) to appeal to the Tribunal against the Adjudicator’s determination on a point of law.

12. Section 106 contains the rule-making power including the following:

“106. Rules

(1) The Lord Chancellor may make rules-
(a) regulating the exercise of the right of appeal under section 83, 83 or 101;
(b) prescribing procedure to be followed in connection with proceedings under section 82, 83, 101(1) or 103.”

13. The Rules are the Immigration and Asylum Appeals (Procedure) Rules 2003. Rule 17(3) of those Rules is as follows:

“17(3) The grounds of appeal must-
(a) identify the alleged errors of law in the adjudicator’s determination; and
(b) explain why such errors made a material difference to the decision.”

14. There is no definition of “determination” in the Act, nor is there any such definition in the Rules. We were referred to no authorities bearing on the issue.

15. Rule 17 clearly envisages that the determination may be something that is different from the Adjudicator’s decision. Section 86 also uses the word “decision”, but there it is confined to the original immigration decision against which the appeal is brought. So far as the Adjudicator’s process is concerned, the distinction in s86 is between the process of determining (s86(2)) and the process of allowing or dismissing the appeal (s86(3) and (5)). Having determined (presumably made his determination of) the matters raised as grounds of appeal or otherwise required to be considered, the Adjudicator proceeds to allow or dismiss the appeal. The next step, if he allows his appeal, is to make any appropriate order. At that point, we have clearly passed beyond what Parliament regarded as implicit in the word “determination” for otherwise s87(4) would not be necessary.

16. The wording of s86, taken by itself, does not indicate that the determination is anything other than the decision on those matters mentioned in s86(2). But the title of that section shows that the draftsman had something larger in mind, and the fact that the appeal to the Tribunal is against a determination would seem to suggest that the word includes at least the outcome (in the sense of whether the appeal was allowed or dismissed), because otherwise there would be no avenue for appealing the outcome.

17. It would not normally be right to use subordinate legislation as a guide to the interpretation of the principal Act, but the 2003 Procedure Rules are in a special position because of the explicit terms of s106(1). Those statutory provisions make it clear that the right of appeal to the Tribunal is exercisable only in accordance with rules made under that section. It follows that the right of appeal against a determination, given by s101, can be understood only when the provisions of the Act are read in conjunction with the provisions of the Rules. As we have said, the Rules do not define a “determination”, but they do lay down, amongst other things, the method by which a person applies for permission to appeal to the Tribunal against an Adjudicator’s determination. We have indicated above the terms of Rule 17(3), which is one of the conditions to be fulfilled by an Applicant. As we read the Rules, a person who makes an application whose grounds do not both identify alleged errors of law and explain why such errors made a material difference to the decision is (whatever s101 might otherwise imply) not entitled to have permission to appeal and so cannot appeal to the Tribunal.

18. Rule 17(3) only deals with the grounds of appeal: it may well be that, even if permission is granted, the grounds are in the end not found to be made out. But what does appear from Rule 17(3) is that the grounds of appeal must incorporate an argument that the decision of the Adjudicator (which, in context, can mean nothing other than the decision to allow or dismiss the appeal) should have been a different decision. This does not of itself rule out the possibility that the successful party might chose to appeal on the ground that he ought to have been the unsuccessful party: but it does rule out the possibility of applying to the Tribunal for permission to appeal, relying on grounds which seek to preserve the decision to allow or dismiss the appeal.

19. There is no doubt in our minds that the concept of “determination” in the 2002 Act is a concept which is somewhat larger than the decision to allow or dismiss the appeal. The requirement in s86(2) to “determine” matters on the way to allowing or dismissing the appeal is sufficient to demonstrate that. But the combination of ss101 and 106 and Rule 17(3) shows that however wide the statutory concept of a “determination” is, nobody can appeal to the Tribunal unless he challenges the eventual decision.

20. In this case, the Secretary of State was perfectly satisfied by the Adjudicator’s decision to dismiss the appeal. He did not seek to challenge that. Although he was able to point to an arguable (and in our view unarguable) error of law in the Adjudicator’s determination, he has not explained why that error made a material difference to the decision, and he has never sought to provide any such explanation. On the contrary, he would seek to assert that, despite the error, the decision itself should be maintained.

21. An application for permission to appeal on such grounds should not have been granted. The statutory framework prohibits the Tribunal from dealing with an appeal in which the person appeal to the Tribunal does not seek to have the Adjudicator’s decision reversed. Permission having been granted, however, this appeal must now be dismissed. The Adjudicator’s determination accordingly stands as the determination of the Claimant’s appeal.