CO/524/99
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
CROWN OFFICE LIST 
Royal Courts of Justice
Strand, London WC2A 2LL

Thursday, 10 February 2000

B E F O R E
MR JUSTICE TUCKER
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
BETWEEN:

THE QUEEN
and
IMMIGRATION APPEAL TRIBUNAL
Respondent
ex parte
JANET WANYOIKE
Applicant

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040,  Fax No:  0171 831 8838
Official Shorthand Writers to the Court)

Ms Sophie Henderson (instructed by Immigration Advisory Service, London
SE1 4YB) appeared on behalf of the Appellant.
Ms Kassie Smith (instructed by Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondent.

Judgment
As Approved by the Court

Crown Copyright ©

Thursday, 10 February 2000
JUDGMENT

MR JUSTICE TUCKER:
	Janet Wanyoike is a 27 year old Kenyan national, and a member of the Kikuyu tribe.  She applies for Judicial Review of the decision of the Immigration Appeal Tribunal dated 13 January 1999 to maintain its refusal on 30 October 1998 to grant her leave to appeal.  The Applicant was dissatisfied with the determination of a Special Adjudicator dismissing her appeal from a refusal by the Secretary of State for the Home Department to grant asylum.  The determination was promulgated on 5 October 1998, and was deemed to have been received by the Applicant on 7 October.  Therefore in accordance with Rules 13(2) and 42(1)(a) of the Asylum Appeals (Procedure) Rules 1996, any application for leave to appeal to IAT, together with all the grounds of appeal, had to be made within 5 working days, i.e. by 14 October.
	On 8 October, so well within the time limit, the Applicant applied to IAT for leave to appeal.  By Rule 13(3), “An application for leave shall be made by serving upon the Tribunal Form A2, which shall be (ii) accompanied by the original or a copy of the special adjudicator’s determination, together with all the grounds relied on.”  The Applicant appeared to comply with that requirement - the application was faxed to the Tribunal at 10.20 hours and it was accompanied by the Grounds of Appeal.  These were set out in 6 numbered paragraphs.  But there was a seventh, which read: “Further grounds of appeal may follow from the Immigration Advisory Service Tribunal Unit.”
	Later the same day, at 16.31 hours, further grounds were submitted, set out in a document containing 4 paragraphs.  This was of course also within the time limit, and was before the matter had been considered by the Tribunal, though it is questionable whether these further grounds could be said to have “accompanied” the requisite form.  Unfortunately, however, due to an admitted administrative or procedural error, these further grounds were not brought to the attention of the Tribunal until after the application had been considered, and leave had been refused.
	By Rules (13)4 and 42(6).  “An application for leave shall be decided not later than 10 [working] days after its receipt by the Tribunal.”  Thus in the present case the Tribunal had until 22 October to decide the application.  The strict timetable prescribed by the Rules is reinforced by the provisions of Rule 13(5):  “When the Tribunal fails to decide any application for leave under this rule within the time prescribed, the application shall be deemed to have been granted”.
	The Tribunal did decide the matter within the prescribed timetable, - on 13 October.  However, the Chairman did so on consideration only of the original grounds, and not of the further grounds.
	In the course of his determination, the Chairman referred to the grounds submitted in support of the application, which were attached, and said “no further grounds have been submitted.”  This determination was notified to the Applicant on 30 October, and the error was then noticed.  The matter was taken up in correspondence.  The Applicant’s advisors asked if the determination could be reconsidered in the light of the additional grounds, and suggested that the Tribunal had the power to correct its error.  The reaction of the Tribunal was that it was entitled to determine the application on the grounds which accompanied the notice of appeal, and that “The determination dated 13 October 1998 stands.”  However, when it was pointed out that the further grounds were faxed to the Tribunal prior to the date of the determination, it was agreed to bring them to the attention of the Chairman.  By letter of 13 January 1999 it was stated that the Chairman “has had a good look at it and has decided that the original determination stands.”  It is the decision contained in this letter that the Applicant now seeks to impugn, though the relief sought is the quashing of the earlier decision also.
	On behalf of the Applicant, Miss Henderson submits that because two sets of grounds were put in, and because the second set was not considered, it means that the application was not considered by the Tribunal, and that leave to appeal must be deemed to have been given.  Miss Henderson submits that she does not have to show that the further grounds were meritorious, though she accepts that she has to shown that the Applicant has some grounds of succeeding in an appeal to IAT.
	Miss Henderson’s submission is limited to a situation such as the present, where both sets of grounds were submitted before the Tribunal reached its decision.  She concedes that if the Tribunal had determined the application before receipt of the further grounds, then the Applicant could have had no complaint.  Miss Henderson also accepts that all grounds ought to go in with the application.  This is a recognition of the correctness of the judgment of Laws J. (as he then was) in R v IAT ex parte Mubassir (1998) Imm A R 304.  At page 308 Laws J. said that:

	“the scheme contemplated by the draftsmen here is that a single document 	shall be put in by the appellant within the 5 days prescribed and the 	Tribunal are to react to that document by the grant or refusal of leave within 	10 days of its receipt.”
 
	 And in a later passage on the same page, 	Laws J.  said that:

	“the basis of my judgment ought to emphasise to appellants seeking leave 	to 	appeal to the Tribunal the need to put their grounds in the application 	document when it goes to the Tribunal.”

	I agree with these observations.  The IAT is under great pressure.  Not only does it have to work within the strict timetables laid down by the Rules, but it has a very great number of cases to consider.  It behoves  applicants and their advisors who I recognise are also under time constraints, to ease the task of the Tribunal and to ensure that applications for leave to appeal are properly and concisely formulated before submission to the Tribunal, and that all the grounds on which they seek to rely are included in one document accompanying the notice of application.  If grounds are sent in piecemeal, as occurred in the present case, then  the burden placed on the Tribunal is unnecessarily increased, and the possibility of errors occurring, is heightened.
	However that may be, Miss Henderson submits that the Appellant is entitled to submit further grounds, provided these are submitted within the 5 day limit, and that in the  present case the Tribunal should have considered them and taken them into account.  Miss Henderson alternatively submits that having been served on the same day, the two sets of grounds complied with the rules that they should accompany the application notice.  I do not agree with this alternative submission.  I do not consider that the further grounds accompanied the notice in Form A2, as they should have done.  Nevertheless, in the past it has been the practice of the Tribunal to consider further grounds submitted within the 5 day period as Counsel for the Respondent, Miss Smith, has conceded, and as Laws J. in Mubassir said would not be inconsistent with the construction of the rules.  A recent Note to all Appellants and Respondents from the newly appointed President of the IAT, makes it clear that this practice will no longer obtain, save in exceptional circumstances.
	What then is the effect of the Tribunals failure to consider these further grounds, until after the decision had been reached ?  There is strong authority for the proposition that a statutory tribunal does not possess any inherent power to rescind or review its own decisions.  (See the judgment of Sedley LJ in Akewushola v SSHD (1999) Imm AR 594 at page 600).  Further: “If something has gone procedurally wrong which is capable of having affected the outcome, it is to the High Court if necessary on a consensual application - that recourse must be had.  I say “which is capable of having affected the outcome” because, it is strongly arguable, although not necessary to decide, that in the present  case an application to the High Court would not have succeeded.” (Ibid).  Miss Henderson submits that these observations were made obiter, but I do not agree.  In my view Sedley LJ was dealing with an issue which the Court of Appeal had to determine, i.e.  What power, if any, does a Chairman or a full Tribunal possess to rescind a determination once given ?
	Miss Henderson submits that in any event the Court in Akewushola was only considering the position of the IAT when determining an appeal, and that the decision does not affect the power of a Chairman in his decision whether or not to grant leave to appeal.  Miss Henderson seeks to distinguish between a determination (e.g. of a Special Adjudicator or of the full IAT on the one hand, and a decision of a Chairman sitting on his own on the other.)  I see no warrant for such a distinction.  Incidentally I observe that in the present case the first decision to refuse leave is referred to on the face of the document as a determination.
	Miss Henderson relies on the decision of the Divisional Court in R v Kensington & Chelsea Rent Tribunal ex parte MacFarlane(1974)3 AER 390 as authority to the contrary view to that expressed by the Court of Appeal in Akewushola.  I confess I do not find pronouncements on the rules and practices of rent tribunals a quarter of a century ago of any assistance in resolving the present problem.
	I therefore conclude that the Chairman had no power to have another look at his original determination or to decide whether or not it should stand.  Accordingly the matter should be approached on the basis that the later decision did not constitute a fresh decision: it was a nullity and must be disregarded.  The only determination of the Tribunal was that of the 13 October, reached without consideration of the further grounds.  The question is whether that determination is thereby invalidated.   Although there was, as I have said, a practice at that time to consider further grounds, there was in my opinion no obligation upon the Tribunal to do so even though it had not yet reached its decision.  The only obligation was that imposed by the Rules.  i.e. to consider all the grounds relied upon which accompanied the notice.   In my judgment the determination reached on 13 October was a valid decision, taken within the prescribed time limit.  It is not open to the Applicant to allege that the Tribunal has failed to decide her application within the time limit or to contend that her application should be deemed to have been granted.  In considering the further grounds the Tribunal was acting in its discretion and outside the Rules.
	In any event it is debatable whether the fresh unconsidered, grounds are capable of having affected the outcome.  If they had been taken into account, is it possible that leave to appeal would have been granted, and would the substantive appeal have had some prospect of success ?
	This involves a comparison between the old grounds and the new, and an analysis of the issues raised by each of them.  In her skeleton argument, Miss Henderson describes the new grounds as “supplementary grounds”.  Miss Smith, however, submits that some of them, notably grounds 1 and 2, merely reiterate what had been in the original grounds and therefore submits that these points had already been taken into account, and the new grounds would have made no difference to the IAT’s decision to refuse the application.  Ground 3 was not included in the first set of grounds, but is in Miss Smith’s submission doomed to failure.  It asserts that persecution cannot only be defined as detention or arrest and that the SA erred in taking too narrow a view of persecution and placed too little weight on the subjective fear of the appellant and the objective evidence of her injuries.  The SA quite clearly did not find that persecution had to be detention or arrest:  she merely observed correctly that A had never been detained or arrested in Kenya [18].  The IAT had already considered the SA’s assessment of A’s subjective evidence and the medical evidence when considering A’s original grounds of appeal [22].   The SA carefully considered the medical evidence, and expressly found, as she was entitled to, that the various scars and injuries seen on the Applicants body were related to beatings at her first claimed attack, or to her escape.
	In my judgment Miss Smith’s analysis is correct.  The new grounds added nothing, or nothing of any substance or merit, to the original grounds, and in my opinion when closely examined would not have affected the outcome.
	In conclusion I come to the view that the first, and as I have found, the only valid determination by the IAT was a decision which the Tribunal were entitled to reach.  It was a lawful, reasonable and rational decision and the application to grant Judicial Review is refused.