[2003] UKIAT 84
- Case title: BM (Procedure rules, Rule 59, Adjudicator determination)
- Appellant name: BM
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Algeria
- Judges: Mr J A O'Brien Quinn QC, Mr N Kumar JP
- Keywords Procedure rules, Rule 59, Adjudicator determination
The decision
H-AM-V2
Heard at Field House
BM (Procedure Rules - Rule 59 - Adjudicator Determination) Algeria [2003] UKIAT 00084
On 14 August 2003
IMMIGRATION APPEAL TRIBUNAL
Date Determination notified:
23.09.03
Before:
J A O’Brien Quinn QC (Chairman)
Mr N Kumar JP
Between
APPELLANT
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
RESPONDENT
DETERMINATION AND REASONS
1. The Appellant, a citizen of Algeria born on 27 January 1972, appeals against the determination of an Adjudicator (Mr Peter Clarke) who, in a determination promulgated on 30 January 2003 would appear to have dismissed the Appellant's appeal on both asylum grounds and human rights grounds, against the decision of the Secretary of State, dated 24 September 2002, to issue removal directions to an illegal entrant and giving removal directions to Algeria following refusal of his application for asylum.
2. The Appellant was represented by Mr R Bhardwhaj, Solicitor, of Rais, Solicitors, Birmingham, while Mr J Jones, Senior Home Office Presenting Officer, represented the Secretary of State.
3. The grounds of appeal in this matter read as follows:-
“1. Even though he has rejected the asylum appeal, the Adjudicator has failed to consider that the timing of any return should be related to current conditions in Algeria to ensure that the Appellant will not be at risk.
2. Also the Adjudicator's Determination is very vague and contradictory – it is not clear at all whether the Adjudicator has allowed or dismissed the appeal.
3. For example, at paragraph 32, the Adjudicator has stated that “I therefore find that the Appellant has discharged the burden of proof of having a well founded fear or persecution for a Convention reason. I therefore come to the conclusion that the Appellant's removal would cause the United Kingdom to be in breach of its obligations under the 1951 Convention.” However, at paragraph 39, he has contradicted himself by stating that “I dismiss the appeal on asylum grounds.”
4. The Adjudicator has repeated the same contradiction at paragraph 38 and 40 again.
5. THEREFORE WE SUBMIT, IN THE INTERESTS OF JUSTICE THAT THIS APPEAL SHOULD BE REMITTED FOR A FRESH HEARING BEFORE ANOTHER Adjudicator.
6. Further, we confirm that the Appellant duly attended at our offices on 7th February 2003 with an interpreter to discuss his grounds of appeal. Due to our administrative error there has been a delay in lodging the application for leave to appeal to the IAT. Kindly consider this application albeit out of time as the Appellant's case will be unduly prejudiced by this error on our part.”
4. Leave to appeal to the Tribunal was granted by the Tribunal (Mr K Drabu, Vice President) on 21 March 2003.
5. In granting leave to appeal, the Tribunal stated as follows:-
“Although the determination is generally sound, it does suffer from careless proofreading. The errors are such that leave must be granted.”
6. When the appeal opened, by video link with Birmingham, on 14 August 2003, the Tribunal sought the views of the representatives as to the apparent discrepancies in the findings of the Adjudicator in his determination. The Tribunal drew attention to paragraph 32 of the determination which reads as follows:-
“Given these conclusions, I therefore find that the Appellant has discharged the burden of proof of having a well-founded fear of persecution for a Convention reason. I therefore come to the conclusion that the Appellant’s removal would cause the United Kingdom to be in breach of its obligations under the 1951 Convention.”
7. The Tribunal then drew the attention of the representative to paragraph 39 which reads as follows:-
“I dismiss the appeal on asylum grounds.”
8. The Tribunal then drew the attention of the representatives to paragraph 38 of the determination which states as follows:-
“In the light of the above conclusions, I find that the Decision appealed against would cause the United Kingdom to be in breach of the law or its obligations under Articles 2 or 3, of the 1950 Convention.”
9. The Tribunal then drew the attention of the representative to paragraph 40 which reads as follows:-
“I dismiss the appeal on human rights grounds.
10. The Tribunal also drew the attention of the representatives to paragraph 59(1) of the Immigration and Asylum Appeals (Procedure) Rules 2003 which read as follows:-
“An Adjudicator or the Tribunal may at any time amend an order or a determination to correct a clerical error or other accidental slip or omission.”
11. The Tribunal also drew attention to paragraph 59(2) which reads as follows:-
“The power in paragraph (1) included the power of the Tribunal to amend an order or a determination of an Adjudicator, after consulting the Adjudicator concerned.”
12. Mr Jones submitted that there had been correspondence on 13 March 2003, concerning these two apparent discrepancies as well as the fact that five paragraphs of the determination appear to have been omitted at some stage as there are no paragraphs 28, 29, 30, 31 of the determination and that despite representations having been made as to these matters, and the suggestion put forward that it could be corrected under the old Rules, which then applied, nothing appears to have happened. Mr Jones submitted that the course suggested by the Tribunal, namely to remit the matter to the same Adjudicator under Rule 59(2) of the new Rules, would be the best course in the circumstances.
11. Mr Bhardwhaj, while he realised the situation, and saw sense in the proposal, nevertheless submitted that the better course may be for the whole matter to be remitted to another Adjudicator so that the matter could be considered afresh, as at this stage, some seven months after the Adjudicator had reached his decision, it may put him into a difficult position in coming to a conclusion as to which of the decisions was the correct one. He submitted, that by remitting the matter to be heard afresh by another Adjudicator, the whole matter could be solved.
12. Mr Jones, in reply, submitted that that would not be necessary as it would appear that it was merely an accidental slip and did not go to the root of the Adjudicator's findings.
13. The Tribunal, itself, having considered the point raised, was of the view that what was before it now was all in the nature of an accidental slip or error rather than an error of substance and that, in the circumstances, the better course would be for this appeal to be remitted to the same Adjudicator, so that he can be given an opportunity to amend paragraph 32, paragraph 38, paragraph 39 and paragraph 40 as well as supplying the missing paragraphs 28, 29, 30 and 31, if such paragraphs exist.
14. Accordingly, the Tribunal, in the presence of the representatives, by video link with Birmingham, remitted this appeal to the same Adjudicator (Mr Peter Clarke) under Rule 59(1) and (2) of the Immigration and Asylum Appeals (Procedure) Rules 2003, so that he can make any necessary corrections and re-promulgate his determination in proper form, under the Rules, so that the Appellant can be given every opportunity of lodging any necessary appeal, following Rule 59(3)(b) of the Immigration and Asylum Appeals (Procedure) Rules 2003.
15. This appeal is, accordingly, remitted to the same Adjudicator (Mr Peter Clarke) under the terms of Rules 59 of the Procedure Rules 2003.
J A O’BRIEN QUINN QC
CHAIRMAN
Heard at Field House
BM (Procedure Rules - Rule 59 - Adjudicator Determination) Algeria [2003] UKIAT 00084
On 14 August 2003
IMMIGRATION APPEAL TRIBUNAL
Date Determination notified:
23.09.03
Before:
J A O’Brien Quinn QC (Chairman)
Mr N Kumar JP
Between
APPELLANT
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
RESPONDENT
DETERMINATION AND REASONS
1. The Appellant, a citizen of Algeria born on 27 January 1972, appeals against the determination of an Adjudicator (Mr Peter Clarke) who, in a determination promulgated on 30 January 2003 would appear to have dismissed the Appellant's appeal on both asylum grounds and human rights grounds, against the decision of the Secretary of State, dated 24 September 2002, to issue removal directions to an illegal entrant and giving removal directions to Algeria following refusal of his application for asylum.
2. The Appellant was represented by Mr R Bhardwhaj, Solicitor, of Rais, Solicitors, Birmingham, while Mr J Jones, Senior Home Office Presenting Officer, represented the Secretary of State.
3. The grounds of appeal in this matter read as follows:-
“1. Even though he has rejected the asylum appeal, the Adjudicator has failed to consider that the timing of any return should be related to current conditions in Algeria to ensure that the Appellant will not be at risk.
2. Also the Adjudicator's Determination is very vague and contradictory – it is not clear at all whether the Adjudicator has allowed or dismissed the appeal.
3. For example, at paragraph 32, the Adjudicator has stated that “I therefore find that the Appellant has discharged the burden of proof of having a well founded fear or persecution for a Convention reason. I therefore come to the conclusion that the Appellant's removal would cause the United Kingdom to be in breach of its obligations under the 1951 Convention.” However, at paragraph 39, he has contradicted himself by stating that “I dismiss the appeal on asylum grounds.”
4. The Adjudicator has repeated the same contradiction at paragraph 38 and 40 again.
5. THEREFORE WE SUBMIT, IN THE INTERESTS OF JUSTICE THAT THIS APPEAL SHOULD BE REMITTED FOR A FRESH HEARING BEFORE ANOTHER Adjudicator.
6. Further, we confirm that the Appellant duly attended at our offices on 7th February 2003 with an interpreter to discuss his grounds of appeal. Due to our administrative error there has been a delay in lodging the application for leave to appeal to the IAT. Kindly consider this application albeit out of time as the Appellant's case will be unduly prejudiced by this error on our part.”
4. Leave to appeal to the Tribunal was granted by the Tribunal (Mr K Drabu, Vice President) on 21 March 2003.
5. In granting leave to appeal, the Tribunal stated as follows:-
“Although the determination is generally sound, it does suffer from careless proofreading. The errors are such that leave must be granted.”
6. When the appeal opened, by video link with Birmingham, on 14 August 2003, the Tribunal sought the views of the representatives as to the apparent discrepancies in the findings of the Adjudicator in his determination. The Tribunal drew attention to paragraph 32 of the determination which reads as follows:-
“Given these conclusions, I therefore find that the Appellant has discharged the burden of proof of having a well-founded fear of persecution for a Convention reason. I therefore come to the conclusion that the Appellant’s removal would cause the United Kingdom to be in breach of its obligations under the 1951 Convention.”
7. The Tribunal then drew the attention of the representative to paragraph 39 which reads as follows:-
“I dismiss the appeal on asylum grounds.”
8. The Tribunal then drew the attention of the representatives to paragraph 38 of the determination which states as follows:-
“In the light of the above conclusions, I find that the Decision appealed against would cause the United Kingdom to be in breach of the law or its obligations under Articles 2 or 3, of the 1950 Convention.”
9. The Tribunal then drew the attention of the representative to paragraph 40 which reads as follows:-
“I dismiss the appeal on human rights grounds.
10. The Tribunal also drew the attention of the representatives to paragraph 59(1) of the Immigration and Asylum Appeals (Procedure) Rules 2003 which read as follows:-
“An Adjudicator or the Tribunal may at any time amend an order or a determination to correct a clerical error or other accidental slip or omission.”
11. The Tribunal also drew attention to paragraph 59(2) which reads as follows:-
“The power in paragraph (1) included the power of the Tribunal to amend an order or a determination of an Adjudicator, after consulting the Adjudicator concerned.”
12. Mr Jones submitted that there had been correspondence on 13 March 2003, concerning these two apparent discrepancies as well as the fact that five paragraphs of the determination appear to have been omitted at some stage as there are no paragraphs 28, 29, 30, 31 of the determination and that despite representations having been made as to these matters, and the suggestion put forward that it could be corrected under the old Rules, which then applied, nothing appears to have happened. Mr Jones submitted that the course suggested by the Tribunal, namely to remit the matter to the same Adjudicator under Rule 59(2) of the new Rules, would be the best course in the circumstances.
11. Mr Bhardwhaj, while he realised the situation, and saw sense in the proposal, nevertheless submitted that the better course may be for the whole matter to be remitted to another Adjudicator so that the matter could be considered afresh, as at this stage, some seven months after the Adjudicator had reached his decision, it may put him into a difficult position in coming to a conclusion as to which of the decisions was the correct one. He submitted, that by remitting the matter to be heard afresh by another Adjudicator, the whole matter could be solved.
12. Mr Jones, in reply, submitted that that would not be necessary as it would appear that it was merely an accidental slip and did not go to the root of the Adjudicator's findings.
13. The Tribunal, itself, having considered the point raised, was of the view that what was before it now was all in the nature of an accidental slip or error rather than an error of substance and that, in the circumstances, the better course would be for this appeal to be remitted to the same Adjudicator, so that he can be given an opportunity to amend paragraph 32, paragraph 38, paragraph 39 and paragraph 40 as well as supplying the missing paragraphs 28, 29, 30 and 31, if such paragraphs exist.
14. Accordingly, the Tribunal, in the presence of the representatives, by video link with Birmingham, remitted this appeal to the same Adjudicator (Mr Peter Clarke) under Rule 59(1) and (2) of the Immigration and Asylum Appeals (Procedure) Rules 2003, so that he can make any necessary corrections and re-promulgate his determination in proper form, under the Rules, so that the Appellant can be given every opportunity of lodging any necessary appeal, following Rule 59(3)(b) of the Immigration and Asylum Appeals (Procedure) Rules 2003.
15. This appeal is, accordingly, remitted to the same Adjudicator (Mr Peter Clarke) under the terms of Rules 59 of the Procedure Rules 2003.
J A O’BRIEN QUINN QC
CHAIRMAN