Friday Law Report: Grounds of appeal should clearly identify points of law

4 February 2005 B v Secretary of State for the Home Department ([2005] EWCA Civ 61) Court of Appeal, Civil Division (Lord Phillips of Worth Matravers, Master of the Rolls, Lord Justice Buxton and Lord Justice Carnwath) 1 February 2005

WHERE THE Secretary of State sought to appeal against an adjudicator's decision in an asylum case, it was important that the grounds of appeal should be settled by someone who was capable of identifying clearly the points of law on which it was alleged that the adjudicator had erred.

The Court of Appeal allowed in part the claimant's appeal against a decision of the Immigration Appeal Tribunal in relation to her asylum claim.

The claimant was a citizen of the Democratic Republic of Congo (DRC). In 2003 she entered the United Kingdom, and claimed asylum four days later. She was refused leave to enter, and appealed to an adjudicator, further contending that she should not be sent back to DRC on the ground that that would infringe her rights under articles 2, 3 and 8 of the European Convention on Human Rights because of the risk to her mental health, and the risk of her being raped.

Her appeal was allowed by the adjudicator. The Secretary of State appealed to the Immigration Appeal Tribunal (IAT) against that decision, pursuant to section 101(1) of the Nationality, Immigration and Asylum Act 2002, which applied to any appeal from a determination of an adjudicator dated on or after 9 June 2003, but limited the right of appeal to an appeal on a point of law. Previously, such an appeal lay against a decision of an adjudicator on grounds of fact or law.

The IAT allowed the appeal, but its decision consisted largely of a review of the facts and of findings that those did not demonstrate that the claimant had a case either under as a refugee or in respect of her human rights. The claimant appealed against the IAT's decision.

Amanda Weston (Taylor & Co) for the claimant; Robin Tam (Treasury Solicitor) for the Secretary of State.

Lord Phillips of Worth Matravers, handing down the judgment of the court, said that counsel for the Secretary of State accepted that there were shortcomings in the grounds of appeal to the IAT, but submitted that the court should as a general rule not take too critical a view of grounds of appeal, since those were often drafted by persons with an inadequate understanding of the law.

While a court would always wish to ensure that the substance of the case was not lost just because of poor drafting, the grounds formed the agenda on which the IAT considered the grant of permission and, if granted, conducted the appeal. As the present case showed, with the recent limitation of the jurisdiction of the IAT it was particularly important that the grounds should clearly establish that the appeal did at least in form fall within that jurisdiction.

In any event the court would certainly not accept such a submission in respect of an appeal brought by the Secretary of State. Where the Secretary of State sought to appeal against an adjudicator's decision it was important that the grounds of appeal should be settled by someone who was capable of identifying clearly the points of law on which it was alleged the adjudicator had erred.

The adjudicator had erred in law in the present case because the amalgamation of considerations relevant to the risk to the claimant's mental health and the risk of rape made it impossible to evaluate his decision.

In those circumstances, it was appropriate that the claimant's appeal on human-rights grounds should be remitted to a different adjudicator.

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