CO/6616/2005 
Neutral Citation Number: [2005] EWHC 3200 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Monday, 19th December 2005
 
B E F O R E:

MR JUSTICE STANLEY BURNTON 

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THE QUEEN ON THE APPLICATION OF AM
(CLAIMANT)

-v- 

ASYLUM AND IMMIGRATION TRIBUNAL
(DEFENDANT)

SECRETARY OF STATE FOR THE HOME DEPARTMENT 
(INTERESTED PARTY) 
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MISS A WESTON (instructed by Browell Smith & Co) appeared on behalf of the CLAIMANT
MISS S BROADFOOT (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT and the INTERESTED PARTY
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J U D G M E N T
1.	MR JUSTICE STANLEY BURNTON:  This is an application for permission to bring judicial review proceedings in respect of interlocutory decisions made by an immigration judge, Mr L D Sachs, in the course of his consideration of the claim for asylum by the present claimant, AM, a citizen of Cameroon.  It is unnecessary for the purposes of my decision to consider the substance of the complaints made in respect of Mr Sachs' decisions.  Ultimately, he rejected the claim.  
2.	The claimant sought reconsideration under section 103A which was rejected by the senior immigration judge and reconsideration was sought again by the High Court.  On 10th November 2005 Bean J made an order on the papers, necessarily, rejecting the application for reconsideration of Mr Sachs' decision under the present statutory regime.  
3.	It is clear that there were genuine complaints about Mr Sachs' procedure and these proceedings were begun before he had made his final decision, so at that date only his interlocutory decisions and determinations had been made and therefore the judicial review proceedings could apply to them.  It follows, however, that if he had made decisions which were unfair and which were unfairly prejudicial to the claim for asylum, his substantive decision would be liable to be set aside by the judicial review proceedings or under section 103A, because his procedural errors would constitute errors of law. 
4.	As appears from what I have already said, there have been two sets of proceedings commenced by AM to challenge, in practice, the decision of Mr Sachs; namely judicial review proceedings and proceedings under section 103A.  The Tribunal has appeared today by Miss Broadfoot to challenge the judicial review proceedings on the basis that they constitute an abuse of the process of the court, or are otherwise inappropriate in a case such as the present.  She relies on the decisions of the Court of Appeal in M and G [2004] EWCA Civ 1731, and the more recent decision of Andrew Collins J in Y [2005] EWHC 2845. 
5.	The procedure laid down under section 103A of the Nationality, Immigration and Asylum Act 2002 clearly is intended to be the normal procedure available to any applicant who is disappointed by a decision of the Asylum and Immigration Tribunal.  It restricts the challenge to errors of law and restricts the number of occasions in which an order may be made for reconsideration; that is to say, in relation to any appeal an order can only be made once (see section 103A(2)).  The Act imposes very stringent time limits for the making of an application for reconsideration.  Manifestly, section 103A was introduced by Parliament with a view to expediting consideration of asylum claims to the appeals system.  It is, I think, accepted by Miss Weston on behalf of the claimant that in the normal course it would be inappropriate, and possibly an abuse of the court, to seek to challenge a decision of the Tribunal which is open to the section 103A procedure by means of judicial review.  Judicial review is, in general, but particularly in this context, an exceptional remedy.
6.	The question for me is whether, in the circumstances of this case, that exception has been established so as to justify judicial review proceedings.
7.	As I have already stated, material procedural errors which may have affected a determination of the Tribunal will be now regarded as errors of law which should lead to an order for the reconsideration of the immigration judge's decision.  Miss Weston contends that in a case such as the present evidence would be required in order to establish whether or not there were material procedural errors or defects in procedure before the immigration judge: demonstration of bias, unfairness, exclusion of admissible evidence and the like.  However, if seems to me that where such allegations are made, it is open to an appellant -- that is to say someone seeking reconsideration -- to put before the senior immigration judge and the Court of Appeal the evidence on which he or she relies in order to establish those procedural errors, as indeed occurred in the present case.  I do not see that the procedure under section 103A is inappropriate to deal with complaints such as those made in the present case.
8.	Furthermore, I am considerably troubled by the fact that if I were to give permission in this case the matter would come before a High Court judge who would, in effect, be asked to rule that Bean J, who refused reconsideration and gave substantial reasons for doing so, was in error.  It can be only in the most extreme circumstances, if ever, that one High Court judge dealing with the same case and the same complaints as another could be invited to come to a different conclusion.  If I were to give permission in this case, it seems to me that if I were to hear the substantive claim I should be sitting as a Court of Appeal from the decision of Bean J.  Bean J had before him the complaints of breach of natural justice and unfairness.  He examined them to see whether they were arguable and ruled that they were not.  Complaints may be made about the conclusion that he reached, but it is inappropriate for such a complaint to be made to another High Court judge and Parliament has stipulated that his decision is, in any event, final.  
9.	It seems to me that this case is not distinguishable from the general rule as stated by the Court of Appeal in G.  It is unnecessary for me to find that these proceedings are an abuse of the process.  It is sufficient for me to say that in the circumstances of a case such as the present, it is inappropriate for permission to challenge the decision of the immigration judge by way of judicial review to be granted.
10.	I would add that although these judicial review proceedings concerned interlocutory decisions, in due course one would have expected the substantive decision also to be challenged.  Generally it is inappropriate to challenge interlocutory decisions.  A party complaining of those decisions is normally required to await the substantive decision.  I have not considered the merits of the procedural complaints made in this case.  I appreciate that those complaints are complaints which are strongly held but, having regard to the statutory regime and the authorities which it seems to me have considered the position, for material purposes, I refuse permission.
11.	MISS WESTON:  My Lord, I simply remind the court that the immigration judge did invite the claimant to seek interlocutory judicial review.  When one considers whether it is an abuse of process one has to consider that. 
12.	MR JUSTICE STANLEY BURNTON:  Perhaps I should add something.  I am reminded that the immigration judge himself suggested judicial review of the interlocutory decisions we have made.  It seems to me that he erred in that respect, but it does mean that those representing the claimant are not to be faulted in the same way for having sought to do so.  I have no doubt also that they brought proceedings rapidly because they were concerned that there has been an injustice.
13.	MISS WESTON:  I am grateful, my Lord.  Could I just ask for a detailed assessment of the publicly funded costs? 
14.	MR JUSTICE STANLEY BURNTON:  Of course.  Thank you both very much.