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.

Start your day with The Independent, sign up for daily news emails
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebooksNow available in paperback
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Ashdown Group: C#.Net Developer - C#, ASP.Net, PHP, HTML, JavaScript, CSS

£30000 - £35000 per annum: Ashdown Group: C#.Net Developer - C#, ASP.Net, HTML...

Recruitment Genius: Business Support Administrator - Part Time

Negotiable: Recruitment Genius: This is an opportunity to join the South West'...

Recruitment Genius: Business Development Executive - OTE £40,000

£25000 - £40000 per annum: Recruitment Genius: An expanding business based in ...

Recruitment Genius: Field Sales - Business Broker - Scotland

£35000 - £40000 per annum: Recruitment Genius: As an award winning and leading...

Day In a Page

Homeless Veterans appeal: 'You look for someone who's an inspiration and try to be like them'

Homeless Veterans appeal

In 2010, Sgt Gary Jamieson stepped on an IED in Afghanistan and lost his legs and an arm. He reveals what, and who, helped him to make a remarkable recovery
Could cannabis oil reverse the effects of cancer?

Could cannabis oil reverse effects of cancer?

As a film following six patients receiving the controversial treatment is released, Kate Hilpern uncovers a very slippery issue
The Interview movie review: You can't see Seth Rogen and James Franco's Kim Jong Un assassination film, but you can read about it here

The Interview movie review

You can't see Seth Rogen and James Franco's Kim Jong Un assassination film, but you can read about it here
Serial mania has propelled podcasts into the cultural mainstream

How podcasts became mainstream

People have consumed gripping armchair investigation Serial with a relish typically reserved for box-set binges
Jesus Christ has become an unlikely pin-up for hipster marketing companies

Jesus Christ has become an unlikely pin-up

Kevin Lee Light, aka "Jesus", is the newest client of creative agency Mother while rival agency Anomaly has launched Sexy Jesus, depicting the Messiah in a series of Athena-style poses
Rosetta space mission voted most important scientific breakthrough of 2014

A memorable year for science – if not for mice

The most important scientific breakthroughs of 2014
Christmas cocktails to make you merry: From eggnog to Brown Betty and Rum Bumpo

Christmas cocktails to make you merry

Mulled wine is an essential seasonal treat. But now drinkers are rediscovering other traditional festive tipples. Angela Clutton raises a glass to Christmas cocktails
5 best activity trackers

Fitness technology: 5 best activity trackers

Up the ante in your regimen and change the habits of a lifetime with this wearable tech
Paul Scholes column: It's a little-known fact, but I have played one of the seven dwarves

Paul Scholes column

It's a little-known fact, but I have played one of the seven dwarves
Fifa's travelling circus once again steals limelight from real stars

Fifa's travelling circus once again steals limelight from real stars

Club World Cup kicked into the long grass by the continued farce surrounding Blatter, Garcia, Russia and Qatar
Frank Warren column: 2014 – boxing is back and winning new fans

Frank Warren: Boxing is back and winning new fans

2014 proves it's now one of sport's biggest hitters again
Jeb Bush vs Hillary Clinton: The power dynamics of the two first families

Jeb Bush vs Hillary Clinton

Karen Tumulty explores the power dynamics of the two first families
Stockholm is rivalling Silicon Valley with a hotbed of technology start-ups

Stockholm is rivalling Silicon Valley

The Swedish capital is home to two of the most popular video games in the world, as well as thousands of technology start-ups worth hundreds of millions of pounds – and it's all happened since 2009
Did Japanese workers really get their symbols mixed up and display Santa on a crucifix?

Crucified Santa: Urban myth refuses to die

The story goes that Japanese store workers created a life-size effigy of a smiling "Father Kurisumasu" attached to a facsimile of Our Lord's final instrument of torture
Jennifer Saunders and Kate Moss join David Walliams on set for TV adaptation of The Boy in the Dress

The Boy in the Dress: On set with the stars

Walliams' story about a boy who goes to school in a dress will be shown this Christmas